Idaho’s near-total abortion ban seems to face an imminent road block just days before it’s set to take effect.
Prior to oral arguments on Monday, U.S. District Court Judge Lynn Winmill said there seems to be an “absolute conflict” between that law and a federal law regulating emergency care.
The Biden administration filed the lawsuit earlier this month, citing a federal law requiring hospitals that receive Medicare funding to treat patients with significant health problems. It argues those treatments can include abortions.
“Lives, livelihoods and health are surely on the line,” said Deputy Assistant U.S. Attorney General Brian Netter, noting the criminal penalties would produce a chilling effect on doctors hesitant to run afoul of the law.
If convicted, they could face two to five years in prison, as well as a suspended medical license for the first offense.
Deputy Idaho Attorney General Brian Church admitted that an ectopic pregnancy, one in which an unviable fetus develops outside the womb and can cause severe or fatal bleeding, would fall under the ban’s scope.
Monte Stewart, an attorney for the Idaho legislature, however, said criminal charges wouldn’t be brought against a doctor performing an illegal abortion “in the real world.”
“Idaho is capable of many things, but it's not capable of producing a prosecuting attorney stupid enough to prosecute an ectopic pregnancy,” Stewart said.
Winmill eventually posed a hypothetical to Church and Stewart. If they served as attorneys to a hospital and a physician called asking whether they could abort a pregnancy in which a woman had a 50% chance of dying, how would they advise them?
Church said he would only outline the law as it is written. The ultimate decision, he said, would be up to the doctor.
“If there truly is a prosecution of a physician, then they can argue the abortion is within his or her good-faith medical judgment,” Church said.
He also argued that federal law only requires hospitals to stabilize the patient before being discharged or transferred to another facility.
That treatment doesn’t have to be “a cure of an emergency medical condition.”
Stewart, on the other hand, said he would have no trouble advising the doctor to perform the abortion under the hypothetical scenario.
“In the real world, there will not be a prosecution,” he said.
Winmill didn’t seem to buy that argument, saying the text of the law is “pretty easy to read and understand.”
“The legislature wouldn’t have adopted the law if they didn’t intend it to be enforced,” he said.
Planned Parenthood is challenging the near-total abortion ban in the Idaho Supreme Court, as well as two other cases involving further abortion restrictions. One is a Texas-style abortion ban passed earlier this year, while the third is a six-week abortion ban adopted in 2021.
The other two laws are written in a way to make the near-total ban and its strict limitations the only enforceable offense if all three are enacted.
In his closing rebuttal, Netter said the federal government believes an injunction blocking the 2020 law would effectively leave Idaho without any type of ban in effect because of the way those statutes were constructed.
Winmill said he will issue a written decision by Wednesday on whether to block the near-total abortion ban, which takes effect Thursday.
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