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Federal judge partially stays Idaho's near-total abortion ban

Idaho abortion rally
James Dawson
Boise State Public Radio
Hundreds of pro-abortion rights advocates rallied in front of the Idaho Capitol Saturday May 14, 2022. They were protesting a leaked opinion from the U.S. Supreme Court that's poised to overturn Roe v. Wade, which guaranteed a constitutional right to the procedure.

Idaho’s near-total abortion ban will not take full effect Thursday as planned after a federal judge temporarily blocked parts of the law.

“Idaho’s choice to impose severe and sweeping sanctions that decrease the overall availability of emergency abortion care flies in the face of Congress’s deliberate decision to do the opposite,” wrote Idaho District Court Judge Lynn Winmill.

The law would’ve banned all abortions with just three exceptions.

Survivors of rape and incest would need to file a police report and share that with their doctor, which advocates argue is unrealistic. Police reports aren’t public documents until an investigation is complete, which can take months or years.

The third exception applies when the life of the mother is in jeopardy, and that’s where the conflict lies.

A federal law regulating emergency rooms requires hospitals receiving Medicare dollars to treat anyone with severe health conditions, which the Biden administration argues can include abortions.

The Idaho Attorney General’s office argued hospitals are only required to stabilize a patient under that federal law – not cure them.

Under emergency circumstances, Winmill wrote "...the physician may well find herself facing the impossible task of attempting to simultaneously comply with both federal and state law."

Winmill went on to outline how a physician’s defense – that they thought the life of the mother was at risk – doesn’t mean they wouldn’t be risking arrest, prosecution and potential conviction based on their medical judgment for every abortion they performed.

“So even though accused healthcare workers might avoid a conviction, the statute still makes it impossible to provide an abortion without also committing a crime,” he wrote, calling the exception “an empty promise.”

Winmill did not stay implementation of the law as it related to other, non-emergency abortions. The case remains ongoing.

He foreshadowed his ruling during a hearing Mondaywhen he said there seemed to be an “absolute conflict” between the ban and federal law prior to oral arguments.

During oral arguments, an attorney for the Idaho legislature claimed both the state ban and federal law could operate in harmony. He said no prosecutor “in the real world” would bring charges against a physician for trying to save the life of a patient by performing an abortion.

Winmill wasn’t swayed.

“Even if the Court accepted this invitation to ignore what the law says, the Legislature’s speculations about how the law will work in practice are belied by the actual, “real-life” experience of medical professionals in Idaho who regularly treat women in these situations.”

Last Friday, a six-week abortion ban took effect in Idaho, though the U.S. Department of Justice questions whether it’ll actually be prosecutable come Thursday.

That’s because the language of the six-week ban states that the near-total ban would supersede it if both are “enforceable.”

During Monday’s hearing, a lawyer for the DOJ said he believes both laws would simultaneously be included under Idaho code, despite Winmill’s stay.

The Idaho Attorney General’s office declined to comment on that potential, as well as Winmill’s decision.

Idaho House Republicans say they will appeal the ruling.

"To protect the lives of as many of these children as possible, the Idaho Legislature will pursue all legal means to bring this injunction to an end as quickly as possible."

Follow James Dawson on Twitter @RadioDawson for more local news.

Copyright 2022 Boise State Public Radio

I cover politics and a bit of everything else for Boise State Public Radio. Outside of public meetings, you can find me fly fishing, making cool things out of leather or watching the Seattle Mariners' latest rebuilding season.

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