A federal judge in Idaho sided with the Biden administration on Wednesday when he ruled that doctors who perform abortions in medical emergencies cannot be charged under Idaho’s abortion ban. A day earlier, a federal judge in Texas reached the opposite conclusion, ruling that the state can ban abortions performed during medical emergencies.
These conflicting district court decisions could end up provoking the Supreme Court to wade back into the abortion issue for the first time since its conservative supermajority overturned the 49-year old precedent of Roe v. Wade. If that happens, the court will either place some guardrails on the furious assault on abortion rights being waged by right-wing lawmakers nationwide, or give their efforts a bright-green light.
The Idaho and Texas cases come in response to an executive order issued by President Joe Biden following the court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization, which ended national protection for abortion rights.
Biden’s order concerns the federal Emergency Medical Treatment and Labor Act, which requires medical professionals at hospitals that accept Medicaid to act to protect patients having medical emergencies. His administration notified states that it interprets the law to cover abortion care.
This means that doctors who perform an abortion to protect a patient having a medical emergency can’t be charged under a state’s abortion ban.
The Department of Justice followed up this directive by filing a lawsuit against Idaho for its abortion ban’s conflict with EMTALA. While Idaho’s abortion ban does provide an exception to protect the life of the mother, the DOJ argued in its legal brief that EMTALA requires doctors to protect the health of a pregnant patient who is “in ‘serious jeopardy’ or risk[s] ‘serious impairment to bodily functions’ or ‘serious dysfunction of any bodily organ or part.’”
“It’s not about the bygone constitutional right to an abortion,” U.S. District Judge B. Lynn Winmill, an appointee of President Bill Clinton, wrote in the Idaho case. “This Court is not grappling with that larger, more profound question. Rather, the Court is called upon to address a far more modest issue — whether Idaho’s criminal abortion statute conflicts with a small but important corner of federal legislation. It does.”
Sarah A. Miller/Idaho Statesman/Tribune News Service via Getty Images
The decision will not stop Idaho’s abortion ban from going into effect. Rather, it prohibits the state from charging doctors who perform an abortion as part of a medical emergency under EMTALA unless it can be proven unnecessary.
Things have played out differently in Texas, however. There, state Attorney General Ken Paxton, a Republican, sued to challenge the executive order’s application to his state’s ban. The Lone Star State has one of the strictest abortion bans in the entire country, with doctors facing up to life in prison and a minimum $100,000 fine if found guilty of performing an abortion. The only exceptions granted are for the life or “substantial impairment of major bodily function” of the mother.
A decision by U.S. District Judge James Wesley Hendrix, appointed by President Donald Trump, halted guidance from the Centers for Medicare & Medicaid Services that implements the executive order’s EMTALA provision. Hendrix found the guidance “unauthorized” because the law is “silent as to abortion.”
Further, the doctor has a duty to protect the health and life of the “unborn child,” which is equal to that of the pregnant patient, Hendrix argued.
“Because the doctor has a duty to both, EMTALA does not require the doctor to introduce an emergency medical condition to one in order to stabilize the other,” Hendrix wrote. “Again, EMTALA does not say how to balance both interests. It leaves that determination to the doctor, who is bound by state law.”
If these cases continue to produce conflicting results upon appeal, the Supreme Court will likely take up one or both cases on its “shadow docket” this fall to resolve the split among federal circuit courts.
While Idaho Gov. Brad Little, a Republican, has not said whether he plans to appeal the decision, GOP legislators in the statehouse said they would “pursue all legal means to bring this injunction to an end as quickly as possible.”
As to the Texas decision, U.S. Attorney General Merrick Garland said in a statement that the department is “considering appropriate next steps.”
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