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Idaho Lawmakers to Help Defend Abortion Law in Federal Lawsuit

Aug. 15, 2022, 2:43 PM

The Idaho legislature can join the defense of a first-ever lawsuit by the US challenging Idaho’s near-total ban on abortion but it’s limited to attempting to show “the holes in the ‘factual’ foundation” of the argument that the ban violates an emergency care law, a federal judge said.

The Department of Justice sued Idaho in early August, arguing that the ban’s narrow exception for procedures necessary to prevent the death of a pregnant person conflicts with the federal Emergency Medical Treatment and Labor Act. EMTALA requires hospitals that receive federal money to screen patients who come to emergency rooms with emergency medical conditions and to stabilize those conditions before transfer or discharge.

“Idaho’s law would make it a criminal offense for doctors to provide the emergency medical treatment that federal law requires,” Attorney General Merrick Garland said at an Aug. 2 press conference announcing the suit. The US moved for a preliminary injunction Aug. 8 to stop the law from taking effect on Aug. 25, as scheduled. A hearing on the motion is set for Aug. 22 in Boise.

The suit in the US District Court for the District of Idaho is the Biden administration’s first legal action against a state that has restricted access to abortion following the Supreme Court’s June 24 ruling eliminating the constitutional right to the procedure. The Idaho law is a “trigger” ban—so-named because its effectiveness was triggered by the decision on Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade.

Judge B. Lynn Winmill granted the legislature’s motion for permissive intervention Aug. 13. The motion was timely and discusses defenses that present common issues of fact and law, he said.

But the lawmakers’ participation will be limited to presenting evidence about “relevant abortions” allegedly occurring in emergency rooms in Idaho hospitals, Winmill said. The legislature defined relevant abortions as those that fall inside the law’s prohibition and outside the overlap between the medical emergency exception and EMTALA. Ectopic pregnancies, for example, fall outside the ban, while abortions that are unquestionably necessary to save a pregnant person’s life fall within the overlap, it said.

Only medical cases that fall outside the overlap but within EMTALA are relevant, the lawmakers said. And there is no evidence such abortions are taking or will take place in Idaho, they said. That is a material fact that justifies denying the injunction motion, they said.

The DOJ is defending a similar suit in Texas, where the state is fighting a Biden administration rule that emergency abortions for medical reasons in hospitals take priority over state bans on such procedures.

Abortions Banned

Meanwhile, the Idaho Supreme Court Aug. 12 rejected requests to stay enforcement of the trigger ban, Idaho Code §18-622. The law makes it a a felony for anyone to perform or attempt to perform or assist with an abortion except when necessary to save the pregnant person’s life or when the pregnancy resulted from rape or incest reported to law enforcement authorities.

A Planned Parenthood affiliate in the state argued that the ban violates provisions of the Idaho Constitution that protect the fundamental right to privacy in making intimate familial decisions, equal protection, and due process. The plaintiffs aren’t substantially likely to win on the merits of this claim because there is no right to abortion on the face of the state constitution, the court said.

The court couldn’t read this right into state law “without breaking new legal ground, which should only occur after the matter is finally submitted on the merits,” it said.

The state’s top court also overturned an order that stopped the civil enforcement provisions of a law that bans abortions after the sixth week of pregnancy and, like a similar Texas law, delegates enforcement to private citizens.

The law’s criminal provisions weren’t in effect at the time the stay on civil enforcement was entered, and thus the plaintiffs showed a substantial likelihood of winning on their argument that the delegation provision violated the separation of powers doctrine, the court said.

But legal developments that occurred after Dobbs allowed the criminal enforcement provision to take effect, and it’s no longer substantially clear that the plaintiffs can win on the merits of their argument against the civil enforcement provision, the court said.

Justice Robyn M. Brody wrote the opinion, in which Chief Justice G Richard Bevan and Justice Gregory W. Moeller joined.

Justice John R. Stegner dissented, saying he would stay the total abortion ban, affirm the order staying the enforcement of the civil liability law, and stay the enforcement of the six-week ban. Justice Colleen D. Zahn joined.

The US Department of Justice represents the government in the federal case. Wilmer Cutler Pickering Hale & Dorr LLP and Bartlett & French LLP represent the plaintiffs in the state supreme court case. The Idaho Attorney General’s Office represents the state, and Monte Stewart of Las Vegas, Nev., and Morris Bower & Haws PLLC represent the legislature in both cases.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The cases are United States v. Idaho, D. Idaho, No. 22-cv-329, intervention motion granted 8/13/22; Planned Parenthood Great Nw., Haw., Alaska, Ind., & Ky. v. State, Idaho, No. 49615, 8/12/22.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Nicholas Datlowe at