DOJ sues Idaho over abortion ban in first legal challenge since Roe overturn

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The Department of Justice announced Tuesday that it was challenging an Idaho law criminalizing all abortions — its first such intervention since the Supreme Court overturned Roe v. Wade June 24.

Attorney General Merrick Garland said the state law, which would charge anyone who performs or attempts to perform an abortion with a felony punishable by between two and five years in prison, violates a federal statute requiring anyone coming to a medical facility for an emergency to be stabilized and treated.

“Every hospital that receives Medicare funds must provide necessary stabilizing treatment to a patient who arrives in an emergency room suffering from a medical condition that could place their life or health in serious jeopardy,” the AG told reporters. 

“In some circumstances, the medical treatment necessary to stabilize the patient’s condition is abortion.” 

Providers charged under the law would only be able to mount a defense by either arguing that the abortion was done to save the mother’s life, or that it was done after the mother reported that they were a victim of rape or incest to a law enforcement agency — and provided a copy of that report.

Advocates for sexual assault survivors have said the rape and incest exception is essentially useless, because Idaho’s public record law doesn’t allow law enforcement agencies to release reports when a case is still under investigation — a process that generally takes weeks or months.

U.S. Attorney General Merrick Garland takes questions following the announcement of the Justice Department's first affirmative litigation to protect access to reproductive healthcare following the Supreme Court's decision to overturn Roe v. Wade, at the Department of Justice in Washington, U.S., August 2, 2022
US Attorney General Merrick Garland said the Department of Justice was challenging an Idaho law criminalizing all abortions.
REUTERS/Evelyn Hockstein

Garland also claimed that the Idaho law made no exception for cases “in which the abortion is necessary to prevent serious jeopardy to the woman’s health.”

“The law thus places medical professionals in an impossible situation; they must either withhold stabilizing treatment required by intolerance or risk felony prosecution and license revocation,” Associate Attorney General Vanita Gupta said. 

The law targeted by the DOJ is one of several on the books in the Gem State. A separate law that bans most abortions after six weeks of pregnancy is the subject of a lawsuit by a regional Planned Parenthood organization, as is a law passed this year that allows potential relatives of a fetus or embryo — including relatives of accused rapists — to sue medical providers who perform an abortion.

An attendee at Planned Parenthood's Bans Off Our Bodies rally for abortion rights holds a sign reading "Idaho the women as property state" outside of the Idaho Statehouse in downtown Boise, Idaho, on Saturday, May 14, 2022.
Garland also claimed that the Idaho law made no exception for cases “in which the abortion is necessary to prevent serious jeopardy to the woman’s health.”
Sarah A. Miller/Idaho Statesman via AP

The ban challenged by the Biden administration is set to go into effect on Aug. 25, with the six-week ban set to come into force six days earlier.

Garland insisted the DOJ suit did not “in any way” constitute an end run around the Supreme Court’s decision, saying, “each state can make its own decisions with respect to abortion, but so too can the federal government.”

With Post wires

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