Idaho Asks Supreme Court To Let It Fully Impose Punitive Abortion Ban During Appeal

WASHINGTON, DC - JUNE 29: Members of the media stand outside the U.S. Supreme Court Building on June 29, 2023 in Washington, DC. (Photo by Anna Moneymaker/Getty Images)
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Idaho asked the Supreme Court Monday to stay a lower court injunction, or to take up its case directly, as it attempts to fend off the Biden administration’s challenge of the state’s abortion ban. 

The government filed suit in August 2022, arguing that Idaho’s abortion ban — which includes penalties for providers who perform abortions — runs afoul of Emergency Medical Treatment and Labor Act (EMTALA). 

Health and Human Services Secretary Xavier Becerra published a memo shortly after the Dobbs decision reminding hospitals that EMTALA requires them to perform abortions as part of emergency stabilizing care. Idaho’s ban prohibits abortions except when necessary to prevent the pregnant woman’s death. 

The government has argued that the gap between those two requirements is large, and that EMTALA preempts the abortion ban in those cases. That argument won at the district court level, and a judge enjoined Idaho’s ban where it conflicts with EMTALA. A Ninth Circuit Court of Appeals panel, composed of three Donald Trump appointees, lifted the injunction in September. The government immediately moved for emergency reconsideration by the Ninth Circuit en banc, which vacated the panel order and denied Idaho’s request to impose its ban in those emergency situations during the appeals process.

Now, Idaho is going to the Supreme Court for permission to fully enforce its ban. 

In its new filing, the state rails against the Ninth Circuit’s “unreasoned order,” its “pulling the case away from a panel that had thoroughly considered the merits of Idaho’s stay application” and the federal government’s “unauthorized power grab.” 

Lawyers for the state made many similar arguments to those representing Texas in a parallel case which is currently awaiting a ruling from a 5th Circuit panel that made little effort to mask its hostility to abortion in oral arguments earlier this month. Both states’ legal teams made much of EMTALA’s “silence” on abortion and the federal government’s supposed trampling of state rights. 

“The district court’s injunction effectively turns EMTALA’s protection for the uninsured into a federal super-statute on the issue of abortion, one that strips Idaho of its sovereign interest in protecting innocent human life and turns emergency rooms into a federal enclave where state standards of care do not apply,” Idaho’s lawyers fumed. 

The Biden administration had preemptively sued Idaho in an attempt to soften the blow from Dobbs, particularly in emergency situations. Such clashes between women’s health and draconian abortion bans have already spawned headlines from red states where women have been forced to become very ill or carry non-viable pregnancies to term as providers fear breaking state law. 

The Supreme Court could — if it’s disinclined to grant the stay — take up the case directly instead and add a high-profile abortion showdown to the docket this term, Idaho’s lawyers suggested. 

“The Court could construe this application as a petition for a writ of certiorari before judgment, grant the petition, and set this case for expedited briefing and argument this Term on the question of whether EMTALA preempts state laws that protect human life and prohibit abortions, like Idaho’s Defense of Life Act,” Idaho’s lawyers wrote. 

Read the new filing here: 

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