The Justice Department attacks Idaho’s pro-life law

Blaine Conzatti was speaking at a pro-life event when his phone started blowing up with the news: the Department of Justice on Aug. 2 sued Idaho over its law that would protect most babies from abortion. It claimed that the law, which was set to take effect on Aug. 25 as a result of the U.S. Supreme Court’s overturn of Roe v. Wade, contradicts federal statute because it only narrowly allows for abortions in medical emergencies. As the president of the Idaho Family Policy Center, one of the groups that lobbied for the law in 2020, Conzatti was disappointed but unsurprised at the lawsuit.

“This is a last-ditch effort on the part of a pro-abortion administration to keep abortion legal in Idaho and begin attacking other abortion bans in states,” he said. The lawsuit, he added, raises pressing legal questions: mainly, whether a federal law requiring hospitals to give patients emergency medical treatment means they also have to perform abortions in emergency medical situations. While Conzatti has observed that the government for years has interpreted federal law to require hospitals to perform abortions in medical emergencies, he said the courts have never ruled on it.

Pro-life legal experts argue that the portions of the Idaho law gives physicians plenty of leeway to care for mothers in medical emergencies. Conzatti doesn’t agree with the federal government’s interpretation of the law and believes the lawsuit is frivolous. But he worries that abortion-friendly judges will find in this lawsuit an excuse to strike down state pro-life laws.

The lawsuit takes issue with Idaho’s trigger law because it doesn’t explicitly make an exception for abortions in cases of life-threatening or health-threatening pregnancies. The law only adds that abortions physicians perform to prevent the death of the mother or in cases of rape or incest “shall be an affirmative defense to prosecution.” That language means a physician who says he performed the abortion to save a mother’s life won’t be liable for the abortion if an investigation finds his claims to be true.

This construction, the lawsuit claims, pits the law against the Emergency Medical Treatment and Labor Act (EMTALA), a federal law that requires hospitals that participate in Medicare to stabilize patients experiencing an emergency medical condition regardless of their ability to pay. The act defines an emergency medical condition as one that threatens a person’s health, a bodily function, or a bodily organ. A hospital in 2018 had to pay a $25,000 settlement for failing to screen and provide emergency treatment to a 58-year-old who presented with blurred vision and dizziness. A nurse directed him to an eye doctor, but it turns out he had suffered from a stroke.

According to the lawsuit, the Idaho law doesn’t allow for abortion when a pregnancy threatens a woman’s health, and the affirmative defense structure means that every physician who performs an abortion—even to save a woman’s life—will face the “threat of indictment, arrest, and criminal prosecution” and potential loss of his medical license. This, the Justice Department claims, will scare doctors away from providing needed abortions in medical emergencies.

Of the 13 states with pro-life trigger laws, Idaho is one of four that uses an affirmative defense structure to account for emergency cases. It is also one of six trigger laws that include exceptions for the life of the mother but none for the health of the mother.

Attorney Paul Linton, who wrote the first draft of the Idaho bill, also wrote the draft legislation for the trigger laws that passed in Texas and Tennessee, both of which are also set to take effect on August 25. Like Idaho, Tennessee’s legislation lists life-of-the-mother situations as an affirmative defense. Texas, meanwhile, names those situations as explicit exceptions to the prohibition on abortion.

In a standard exception, as in Texas, it’s the state’s duty to prove beyond a reasonable doubt that a doctor charged under the law performed an abortion that didn’t fall within the provided exceptions. Meanwhile, under the affirmative defense structure in Idaho and Tennessee, it’s the physician’s job to prove that, more likely than not, he did the abortion to save the woman’s life.

Linton said “the physician more than anybody” knows what the woman’s medical condition was at the time he performed the abortion and why he deemed it necessary, “so it’s reasonable to place the burden on him” rather than on the state. And, while the lawsuit argues that this structure will lead to increasing prosecution of physicians, Linton said there’s no evidence that will happen.

He points to two Ohio laws: one from 2011 that protects babies from abortion once they’re considered “viable” and another from 2017 that bans abortion 20 weeks after fertilization. Both use the affirmative defense structure.

In 2020 alone, Ohio physicians performed 20 abortions on babies past those legal limits, and yet there have been no reports of physicians facing prosecution, despite the affirmative defense structure—likely because they fell within the exceptions under the laws. Linton noted that any prosecutor who receives a report about a possible illegal abortion will look at the evidence before pressing charges. If he doesn’t have sufficient evidence to prove lawbreaking, he won’t bring a case, regardless of the structure of the law.

As for the Idaho law’s lack of an explicit health-of-the-mother exception, such as an infection or high blood pressure, chief legal officer Steve Aden at Americans United for Life pointed to another provision of the law. The legislation clarifies that medical treatment to the mother that results in the “accidental death” of the unborn child is not a violation of the law, and Aden said that speaks to the health-of-the-mother-situations. David Ripley, executive director of Idaho Chooses Life, added that the law places a legal requirement on the doctor to save the unborn baby if at all possible.

“Whether the courts truly respect the constitutional principles that are at issue in this case, or whether they lazily defer to the federal government’s interpretation of their own statute, is anyone’s guess,” Conzattis said. “And that’s where the rub is.”

For now, the heartbeat law with a Texas-style civil enforcement mechanism that Conzatti and the Idaho Family Policy Center sponsored is protecting babies in the state from abortion once they have detectable heartbeats. The State Supreme Court on Friday allowed it to take effect. The law’s criminal penalties will become effective on August 19. That law allows for abortion “in the case of a medical emergency” and does not use the affirmative defense structure.