“Idaho’s abortion trigger ban, which was passed in 2020 and is slated to go into effect on August 25, bans all abortions outright. Rather than offering a narrow list of exceptions, as other anti-abortion laws do, Idaho’s law simply provides an affirmative legal defense for doctors arrested and charged with performing abortions. If a doctor can prove by a “preponderance of the evidence” that “[he] determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman,” or if the physician has a copy of the patient’s police report of rape, such doctors cannot be found guilty of performing an illegal abortion. However, if doctors charged with providing abortions fail to meet this standard, they can face up to five years in prison.
“Laws will exist that ask [physicians] to deprioritize the person in front of them and to act in a way that is medically harmful,” Louise King, an OB-GYN at Brigham and Women’s Hospital in Boston, told NPR, referring to new abortion restrictions taking effect across the U.S. “The penalty for not doing so will be loss of license, money loss, potentially even criminal sanctions.” Idaho’s law would likely incentivize doctors to delay care for dangerous pregnancy complications until a woman’s death is imminent.
“When a hospital determines that an abortion is the medical treatment necessary to stabilize the patient’s emergency medical condition, it is required by federal law to provide that treatment,” Garland said during a press conference on August 2, noting that Idaho’s law “would subject doctors to arrest and criminal prosecution, even if they perform an abortion to save a woman’s life.”
The DOJ is suing Idaho over this law, arguing that its blanket ban on abortions, even when the procedure is necessary to save a woman’s life or preserve her health, violates federal law. The Emergency Medical Treatment and Labor Act (EMTALA) is a 1986 federal law requiring hospitals that receive Medicare funds (which includes the vast majority of hospitals) to provide stabilizing care to their patients before discharging them. The DOJ argues that by banning abortions when they are necessary to stabilize a patient’s medical condition (such as when an abortion prevents a deadly septic infection during an incomplete miscarriage or is necessary to begin treatment for newly diagnosed cancer), Idaho’s abortion ban violates federal law and, therefore, must be struck down in accordance with the Supremacy Clause of the Constitution.”