President Joe Biden speaks from the Blue Room Balcony of the White House Monday, Aug. 1, 2022, in Washington, as he announces that a U.S. airstrike killed al-Qaida leader Ayman al-Zawahri in Afghanistan.
Jim Watson/Pool via Associated Press

The Department of Justice sued the state of Idaho on Tuesday over its six-week abortion ban ― the first litigation filed by the Biden administration to protect reproductive rights since the Supreme Court overturned Roe v. Wade in June.

The lawsuit, filed Tuesday morning in the U.S. District Court for the District of Idaho, states that Idaho’s six-week abortion ban is in direct violation of federal law because the restriction does not comply with the 1986 Emergency Medical Treatment and Labor Act. The EMTALA statute requires that all patients receive appropriate medical care and stabilizing treatment in an emergency situation ― including patients who need abortion care when the life or health of the pregnant person is at risk.

“The Idaho law would make it a criminal offense for doctors to comply with EMTALA’s requirement to provide stabilizing treatment, even where a doctor determines that abortion is the medical treatment necessary to prevent a patient from suffering severe health risks or even death,” the lawsuit, obtained by Bloomberg, reads.

The ban, set to go into effect on Aug. 25, 2022, will make it a felony to perform an abortion unless the pregnant person’s life is at risk. But the restriction does not make an exception if the pregnant person’s health is in serious risk.

“When a hospital determines that an abortion is the medical treatment necessary to stabilize a patient’s emergency medical condition, it is required by federal law to provide that treatment,” Attorney General Merrick Garland told reporters during a Tuesday press conference.

EMTALA is in place to protect both the pregnant person and the physicians providing emergency medical care, Garland said. The Idaho abortion ban “would subject doctors to arrest and criminal prosecution even if they performed an abortion to save a woman’s life,” he added. “And it would then place the burden on the doctors to prove that they are not criminally liable.”

Since Roe fell just over a month ago, at least a dozen states have banned or severely restricted abortion care. While many of the bans include lifesaving exceptions, most are deliberately vague ― incentivizing physicians to not provide life-saving care until the pregnant person is at death’s door, for fear of consequences like losing their license or facing lawsuits and criminal penalties.

The Department of Health and Human Services issued a memo in early July reiterating existing guidance around EMTALA, underlining the guidance’s preemptive federal authority over any state abortion restriction.

HHS announced it plans to enforce EMTALA through a complaint process that can result in hospitals or individual doctors having to pay civil monetary fines. The fines vary depending on the size of the hospital, but can go as high as about $120,000 per hospital or physician who violates any provision under EMTALA. Hospital staff, physicians and patients can file an EMTALA complaint with the Centers for Medicare and Medicaid Services.

“Federal law is clear: Patients have the right to stabilizing hospital emergency room care no matter where they live. Women should not have to be near death to get care,” Health and Human Services Secretary Xavier Becerra said in response to the DOJ lawsuit.

“The Department of Health and Human Services will continue its work with the Department of Justice to enforce federal law protecting access to health care, including abortions.”

A regional Idaho Planned Parenthood also sued late last month over the state’s six-week abortion ban, arguing the restriction is unconstitutional.

Last week, the White House convened a private meeting of law firms, bar associations, law professors and other organizations to discuss legal representation and protection for physicians and patients. The DOJ is “working relentlessly to protect access to reproductive services,” Garland said at the meeting, adding that the department “will consider every tool at our disposal to affirm those protections.”

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