Opinion: Biden administration lawsuit challenging Idaho's abortion ban is a critical step

Last week, the Biden administration filed its first lawsuit to protect abortion rights after states began passing increasingly restrictive bans in the wake of Roe v. Wade being overturned by the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.

The administration’s Department of Justice (DOJ) has sued the state of Idaho, alleging that the state’s near-total ban on abortion runs afoul of a federal law, the Emergency Medical Treatment and Labor Act (EMTALA). The EMTALA requires that emergency departments at hospitals that receive Medicare funds provide medical care to stabilize someone with an emergency medical condition.

Under EMTALA, an emergency medical condition is anything that places someone’s health in serious jeopardy, risks severe impairment to bodily functions, or threatens serious dysfunction of a body part or organ. The administration’s lawsuit notes that certain pregnancy-related conditions, such as “ectopic pregnancy, severe preeclampsia, or a pregnancy complication threatening septic infection or hemorrhage,” can require medical care typically characterized as an abortion. The lawsuit alleges that Idaho’s ban would prevent providers from performing an abortion in those settings.

Idaho’s ban allows abortions only to save the life of a pregnant person, not to preserve their health. That’s where the ban runs up against EMTALA, which doesn’t specify that you only stabilize someone medically if they’re going to die, but rather if their health is in any serious jeopardy.

If a doctor were to perform an abortion because they determine there is a severe risk to the patient’s health, they would violate Idaho’s new law. As the administration’s lawsuit notes, that law “provides no defense whatsoever when the health of the pregnant patient is at stake.”

Doctors could face severe consequences if they perform an abortion in violation of the state’s ban. They can be arrested and indicted — and only at the trial stage could they bring up a defense that their conduct was lawful and fell into one of the ban’s few exceptions. If convicted, they face between two and five years in prison and revocation of their medical license. This uncertainty could likely lead to doctors becoming unwilling to perform abortions, even when the threat to a pregnant person’s health is dire.

Rather than substantively justifying their ban, or claiming it wouldn’t result in jailed doctors or withholding of life-saving care, Idaho’s response has been to to complain about the fact that the DOJ filed a lawsuit to defend the law. In a statement, Republican Governor Brad Little declared that America’s real problems lie at the “open border with Mexico” and the state’s Republican attorney general called it “a politically motivated lawsuit.”

Unless the DOJ succeeds with this lawsuit, Idaho’s law will into effect on August 25. At that time, Idaho patients will find themselves in the same situation as people in other states with heavy restrictions or bans. Last month, a Texas Policy Evaluation Project report found that doctors in Texas are delaying treatment of issues arising from pregnancy complications because they fear being sued under Texas’s bounty hunter-style laws, allowing anyone in the state to sue someone who aids or abets an abortion. This led to one woman being forced to carry her dead fetus for two weeks because doctors were reluctant to do the same procedures used during an abortion.

Anti-abortion activists have complained that pro-abortion rights advocates and politicians are simply highlighting these issues as a way to undercut abortion bans. However, anti-abortion activists offer no standard by which a doctor could possibly thread the needle of each jurisdiction’s varying restrictions, nor do they reasonably justify pregnant people’s horrifying experiences since the Dobbs ruling.

The Biden administration’s lawsuit is an opportunity to draw a line in the sand and show that an existing federal commitment to medical care can — and should — override these restrictive abortion bans. Roughly 15 million women live in a state with an abortion ban, and steps like this lawsuit are critical to protecting their health.