On August 2, the US Department of Justice (DOJ) filed its first complaint in the nation against a state law preventing women from receiving necessary emergency care when their life is threatened by dangerous pregnancy complications. Idaho law makes it a criminal offense, with a mandatory minimum jail term of two years, for anyone performing or witnessing an abortion. The The DOJ correctly asserts that Idaho law “preventively criminalizes all abortions…even when denial of care is likely to result in the death of the patient.
A doctor can be sued even if an abortion procedure was essential to save the life of an emergency room patient. Physician can escape jail time and license revocation only by convincing a jury that the abortion was necessary to prevent the death of the pregnant woman or if the pregnancy resulted from reported rape or incest to law enforcement.
The DOJ claims Idaho law conflicts with a federal law called the Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals receiving Medicare funding to provide emergency care to those presenting to emergency rooms with conditions which seriously compromise their health. Emergency conditions include dangerous pregnancy complications such as ectopic pregnancy which can lead to life-threatening hemorrhage, sepsis which can lead to organ failure, and life-threatening eclampsia. The DOJ is seeking a court ruling that the law cannot apply to emergencies.
The main problem with the law is that it was poorly drafted and hastily passed without any informed medical input. Virtually no consideration has been given to the serious problems facing doctors, lawyers and courts in interpreting and applying sloppy and ambiguous wording.
Raul Labrador, the Republican candidate for attorney general, strongly supports the law and has opposed the ER trial. He told the Idaho Press, “The people of Idaho understand better than ever why we need a strong attorney general who will stand up to DC’s bullies and defend Idaho’s duly enacted laws. Idaho respects life. Our elected officials in Idaho have enacted strong pro-life laws to uphold the rights of the unborn child. By filing this lawsuit, the Biden administration seeks to replace the will of the citizens of Idaho with President Biden’s pro-abortion priorities.
Labrador’s opponent, Tom Arkoosh, replied, “It’s not enough to rant about the federal government’s overreach, like my opponent. The best attorney in the state must have a clear view of a case like this and arrive at the answer that best serves the state and its people. I said there was no valid legal defense in this case. Nor is there a moral or ethical defense against a law that would deprive women of emergency health care and expose emergency room workers to criminal prosecution. If I were Idaho’s attorney general, I would negotiate a settlement that would allow the emergency physician, with the consent of the patient, to provide medically necessary care without fear of prosecution.
On August 25, the judge issued a decision that reflects Tom Arkoosh’s legal analysis of the case. The ban on abortion will not be applied to emergencies until the judge has issued a final decision on the merits. The judge indicated that the DOJ would likely prevail in the case. The people of Idaho can judge for themselves which candidate assessed this case in a legal, ethical, and common-sense manner.
Jim Jones is a Vietnam veteran who served 8 years as Idaho Attorney General (1983-1991) and 12 years as an Idaho Supreme Court Justice (2005-2017). He is treasurer of the Arkoosh campaign.