- The Washington Times - Tuesday, August 2, 2022

The Biden administration on Tuesday sued Idaho over its law banning abortions in most circumstances, arguing the state’s move conflicts with federal law.

The Justice Department claims the Emergency Medical Treatment and Labor Act requires hospitals receiving federal Medicare funding to perform emergency services, which can include abortion.

Specifically, the government argues a pregnant patient could use emergency care for an abortion in the event of preeclampsia, an ectopic pregnancy or an infection.

“The Idaho law would make it a criminal offense for doctors to comply with EMTALA’s requirement to provide stabilizing treatment, even where a doctor determines that abortion is the medical treatment necessary to prevent a patient from suffering severe health risks or even death,” the lawsuit read.

It asks the court to rule that the state’s law, which is set to take effect later this month, runs afoul of the Constitution and federal law.

“On the day Roe and Casey were overturned, we promised that the Justice Department would work tirelessly to protect and advance reproductive freedom,” Attorney General Merrick Garland said Tuesday in announcing the lawsuit.  

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“That is what we are doing, and that is what we will continue to do. We will use every tool at our disposal to ensure that pregnant women get the emergency medical treatment to which they are entitled under federal law. And we will closely scrutinize state abortion laws to ensure that they comply with federal law,” he added.

Department of Health and Human Services Secretary Xavier Becerra said patients have a right to health care no matter where they live.

“Women should not have to be near death to get care. The Department of Health and Human Services will continue its work with the Department of Justice to enforce federal law protecting access to health care, including abortions,” he said.

The Idaho abortion ban allows for exceptions only in the case of rape, incest or to save the patient’s life.

The Biden administration announced last month it was notifying health care facilities of the Emergency Medical Treatment and Labor Act as a way to protect access to abortion in states that have moved to curtail the procedure following the high court’s overturning of Roe v. Wade, the 1973 case that established abortion as a right nationally.

Texas sued the Biden administration days after it made the announcement, arguing it can’t force doctors in the state to perform the procedure in violation of state laws. That lawsuit is pending in a federal court in Texas.

President Biden recently signed an executive order aimed at ensuring access to reproductive health care after the Supreme Court in June upended abortion jurisprudence in the case Dobbs v. Jackson Women’s Health Organization, which upheld a 15-week ban on abortion in Mississippi and overruled Roe.

The ruling sent the issue of abortion back to the state legislatures, followed by several conservative states moving to ban abortion.

Four days after the president’s order, the Department of Health and Human Services issued a mandate to “override individual states’ abortion laws under the authority of the EMTALA,” according to the Texas lawsuit.

Idaho Attorney General Lawrence Wasden said the Justice Department did not discuss with the state how the two laws can coexist. Instead, he said the feds are wasting taxpayer dollars on the litigation. 

“It’s unfortunate that, instead of sitting down with the State of Idaho to discuss the interplay between its abortion laws and EMTALA, the U.S. Department of Justice has chosen to file a politically motivated lawsuit. Since the Dobbs decision from the U.S. Supreme Court in June, the Department has had nearly six weeks to discuss with Idaho its abortion laws and their reconciliation with EMTALA,” he said.

The EMTALA was passed in 1986 to ensure no one was turned away from emergency health services whether or not they were able to pay for the medical treatment.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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