Court backs Idaho’s strict ban on abortion

A federal appeals court ruled Thursday that Idaho’s abortion ban may go into full effect — overturning a narrow block on enforcement in emergency situations.

The Ninth Circuit Court of Appeals sided with the state and the state’s Legislature in lifting the partial injunction on the abortion ban amid a challenge by the U.S. Department of Justice, which is suing over the lack of exemption in the law to protect the health of the mother.

The Idaho Legislature had intervened in all of the legal challenges against the state’s abortion bans, hiring its own lawyers in addition to attorneys in the Idaho Attorney General’s Office.

The abortion law includes exemptions, under certain circumstances, for rape and incest and to prevent the death of the mother. The justice department challenged the law, arguing it violates the Emergency Medical Treatment and Labor Act, or EMTALA, a federal law that requires medical providers at facilities that receive Medicare funds treat and stabilize anyone for an emergency, the Idaho Press reported.

U.S. District Court Judge Lynn Winmill granted a preliminary injunction in August 2022, prohibiting prosecutions of abortions that were provided in emergency situations. Thursday’s court order overturned this injunction.

Judge Lawrence VanDyke wrote in the order that the Legislature made a strong case that the abortion ban doesn’t violate EMTALA. Circuit Judges Bridge Bade and Kenneth Lee joined VanDyke in the decision.

He cited an Idaho Supreme Court decision, issued after the district court ordered the injunction, that interpreted the law as “providing a broad, subjective standard requiring the doctor, in his or her good faith medical judgment, to believe it necessary to terminate the pregnancy.”

The judge also cited recent changes the Legislature made to the law, clarifying that removal of ectopic or molar pregnancies did not classify as abortions under the ban.

The narrow exceptions on Idaho’s abortion bans was a topic of consternation for Idaho medical providers who testified in the 2023 session that more clarification was needed for them to feel comfortable providing emergency care to pregnant patients. Many physicians spoke in lukewarm support of the clarification bill with most calling for more work to be done, especially to add language making it clear that abortions could be provided to protect the health and future fertility of the mother.

Four women, two doctors and the Idaho Academy of Family Physicals filed a separate lawsuit Sept. 12 to challenge the lack of exemptions to protect the health of the mother or for fatal fetal diagnoses; the four women all had wanted pregnancies with dangerous complications that threatened their health and were denied abortions in Idaho, as previously reported.

The court also determined that the injunction was “improperly preventing Idaho from enforcing its duly enacted laws and police power also undermines the State’s public interest in self-governance free from unwarranted federal inference.”

Idaho Attorney General Raúl Labrador said in an emailed statement that the White House had attempted to “circumvent” the Dobbs v. Jackson Women’s Health Organization decision, in which the U.S. Supreme Court overturned Roe v. Wade.

“I’m proud of the work my team has done, including collaborating with the Legislature’s counsel, to ensure Idaho’s sensible law continues to save the lives of babies and provides medical professionals with the ability to exercise their judgment to assist women who need emergency care,” Labrador said. “We are encouraged by the Ninth Circuit panel’s decision. Our office acknowledges that this battle is not yet resolved, and we will persist in safeguarding Idaho’s sovereignty against federal overreach.”

The Department of Justice declined a request for comment.

Planned Parenthood Great Northwest Hawaii, Alaska, Indiana, Kentucky CEO Rebecca Gibron, who has been a vocal opponent of Idaho’s abortion bans, sent a statement Friday criticizing the decision.

“Anti-abortion politicians have already banned abortion in the state of Idaho. And now it’s being taken a step further by taking away people’s ability to access emergency care when they need it the most,” Gibron said in an emailed statement. “We’re dedicated to prioritizing our patients’ health and wellbeing — even if our state won’t. Because beyond the right to have an abortion, people deserve to have their doctors make decisions with their health and wellbeing in mind every time. That shouldn’t be a radical stance.”

Thursday’s decision is not final; the justice department could request that an 11-judge appeals court panel reconsider or it may go to the U.S. Supreme Court, Politico reported.

Guido covers Idaho politics for the Lewiston Tribune, Moscow-Pullman Daily News and Idaho Press of Nampa. She may be contacted at lguido@idahopress.com and can be found on Twitter @EyeOnBoiseGuido.