Pro-lifers won a legal battle in Georgia but must fend off a misleading lawsuit in Idaho by the Justice Department.
Pro-lifers won a legal battle in Georgia but must fend off a misleading lawsuit in Idaho by the Justice Department.
T he Dobbs decision may have settled the central question of whether the Constitution prohibits states from regulating or banning abortion. But legal defenders of abortion have not given up on attacking those laws with every weapon at hand, even when that requires stretching the law and bending the truth. Now, Merrick Garland’s Justice Department is suing Idaho on the theory that federal law preempts aspects of the state’s stringent abortion ban.
By filing in federal court in in Idaho, Garland may hope that the first appellate decision on this issue comes from a friendly panel of the Ninth Circuit. But the lawsuit, based on a novel and aggressive legal theory, distorts the truth about Idaho’s law. It is also a premature effort to promote Democratic talking points in the press about abortion bans applying to extreme cases of threats to maternal life or health.
We should not be surprised that Garland is going down this intensely politicized path. His habit of filing lawsuits against states on social issues has turned the Justice Department into something like a left-wing blog. And the Biden administration has broadcast its intent to thwart states from enforcing their democratically enacted abortion laws on the basis of any excuse at hand.
Idaho’s law allows abortion when “necessary to prevent the death of the pregnant woman,” as determined by a physician “in his good faith medical judgment and based on the facts known to the physician at the time.” It further allows a defense when a doctor performed a procedure that “provided the best opportunity for the unborn child to survive, unless, in his good faith medical judgment, termination of the pregnancy in that manner would have posed a greater risk of the death of the pregnant woman.” In short, it treats the mother and child as having an equal right to life, but permits abortion when the mother’s own life is threatened (even if her death is not certain, and the child’s is) and, even then, requires that best efforts be made to ensure the child’s chances of survival.
According to DOJ, the Idaho law bans abortions in situations where the denial of an abortion would violate the federal Emergency Medical Treatment and Labor Act (EMTALA). The primary legal theory of the complaint is that Idaho’s abortion ban would prevent emergency rooms from performing abortions when necessary to stabilize the health of a “pregnant patient.” Naturally, this being the Garland DOJ, the complaint does not use the word “mother” and does not say “woman” except when quoting statutes.
EMTALA provides that hospitals that participate in Medicare must treat people who enter their emergency rooms suffering medical emergencies and who are in need of immediate “stabilizing” attention. It has nothing to do with most applications of Idaho’s law. EMTALA provides no basis at all to require states to permit abortion anywhere but in the emergency room of a hospital that takes Medicare patients, and, even then, treatment is required only where the pregnant woman arrives with “a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in- (i) placing the health of the . . . pregnant woman . . . or her unborn child . . . in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part.” If a woman has some condition that places her in no immediate danger, EMTALA’s mandate to provide “stabilizing” treatment would not apply.
What immediate dangers are those? The complaint cites “ectopic pregnancy, severe preeclampsia, or a pregnancy complication threatening septic infections or hemorrhage.” These are life-threatening conditions that would implicate the life-of-the-mother exception in the laws of Idaho and other states with similar exceptions. Moreover, the doctor’s assessment of life-threatening risks is to be judged against a “good faith medical judgment” standard consistent with what state law traditionally applies in medical malpractice cases. DOJ’s focus on ectopic pregnancy is especially misleading. DOJ claims that “the termination of an ectopic pregnancy appears to fall within Idaho’s broad definition of abortion,” but federal courts do not decide what state laws mean; state courts do.
Idaho will likely take the position, consistent with that of pro-life laws across the country, that the termination of an ectopic pregnancy is not an abortion within the meaning of the law. That would be consistent with how abortion is defined elsewhere in Idaho law. For example, the definition of abortion in Idaho’s ban on public funding for abortion states that it “is not an abortion if done with the intent to save the life or preserve the health of the unborn child, remove a dead unborn child caused by spontaneous abortion, or remove an ectopic pregnancy.” Idaho’s law regulating chemical “abortifacients” likewise states that “nothing in the definition shall apply when used to treat ectopic pregnancy.”
Moreover, there is already litigation in the Idaho supreme court over this and other Idaho abortion laws, with arguments scheduled for tomorrow morning. DOJ rushed to file before the state case could be argued, even though the argument date was set a month ago. It would be premature for a federal court to try to interpret a state law that hasn’t even gone into effect yet (and won’t until August 25) when the state’s own court system is on the case. That applies not only to the ectopic-pregnancy issue but more broadly to the scope of the defenses available to doctors. The office of Idaho attorney general Lawrence Wasden blasted the filing of the lawsuit just two business days after the DOJ sent a letter of protest, without any effort to get the state to weigh in on what its own law means.
EMTALA, enacted in 1986 and signed into law by Ronald Reagan, is also an unusual vehicle for this argument. As the Fourth Circuit explained in Bryan v. Rectors of the University of Virginia (4th Cir. 1996), “Congress’s sole purpose in enacting EMTALA was to deal with the problem of patients being turned away from emergency rooms for non-medical reasons,” specifically, their inability to pay. “The source of EMTALA was the widely reported scandal of emergency rooms’ increasingly dumping indigent patients from one hospital to the next while the patients’ emergency conditions worsened.” But “the legal adequacy of that care is then governed not by EMTALA but by the state malpractice law that everyone agrees EMTALA was not intended to preempt.”
There is little support in judicial decisions for using EMTALA to micromanage state laws governing the standard of medical care, let alone state laws that extend protection of the life of a patient. In fact, EMTALA requires emergency care to protect a pregnant woman “or her unborn child,” a statutory choice that suggests that Congress never intended the law to be used to mandate the death of that unborn child. Moreover, the statute’s preemption provision is narrowly drawn: “The provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.” There is no direct conflict when a state prohibits hospitals from disregarding the survival of an unborn child in providing care.
The closest thing to a precedent supporting Garland’s position is Matter of Baby K (4th Cir. 1994), a case in which a divided panel of the Fourth Circuit read EMTALA to require emergency respiratory care for a baby with anencephaly even in the face of a Virginia law under which doctors need not provide treatment they consider “medically or ethically inappropriate.” Even if Baby K was correctly decided, which is debatable, it did not involve a collision with a specific state statute aimed at the protection of human life by treating two human beings as both having a right to care.
There are other problems as well. DOJ claims that it can run to court before the law has ever been enforced simply on the basis of the “chilling effect” of the law in a small set of its potential applications. DOJ’s argument is that life-saving care is only an affirmative defense to charges — i.e., a doctor charged with an illegal abortion must prove that it was within the exception — and thus doctors might refrain from providing care required by EMTALA. DOJ’s complaint cites a First Amendment case for support on this point, but this is a stretch. Any first-year constitutional-law student could tell you that the courts have treated free speech differently from other areas of the law when it comes to pre-enforcement facial challenges to a law that is constitutional in most cases simply because a law might be applied in some unconstitutional fashions.
Looking beyond Idaho, the massive-resistance rearguard effort of abortion defenders has thus far not gone particularly well in the courts, especially once cases get past the stage of individual trial judges. In Georgia, a pro-abortion group claimed that the state’s defining “natural person” to include an unborn child “with a detectable human heartbeat” was unconstitutionally vague on its face. A panel of the Eleventh Circuit, in an opinion by judge William Pryor, rejected that argument:
When focusing on the text, as we must, it is hard to see any vagueness. . . . The Act defines a natural person to include unborn humans in the womb at any stage of development. . . . A person of reasonable intelligence is capable of understanding that the core meaning of the provision is to expand the definition of person to include unborn humans who are carried in the womb of their mother at any stage of development.
To be sure, there might be vague applications of that definition in other provisions of the Georgia Code, but challenges to those applications—like the arguments raised in the abortionists’ supplemental brief about potential applications to constitutionally protected conduct—are properly brought in an as-applied manner. On its face, the statute is not void for vagueness. (Quotations and citations omitted).
This would be obvious in any other context, but then, as Justice Clarence Thomas has argued at length, the void-for-vagueness doctrine has traditionally been the last refuge of the legal establishment whenever some class of laws is out of favor and cannot be struck down on any other grounds. Judge Pryor called that effort out for what it is: “Because we take the Supreme Court at its word, we must treat parties in cases concerning abortion the same as parties in any other context . . . to the extent that this Court has distorted legal standards because of abortion, we can no longer engage in those abortion distortions in the light of a Supreme Court decision instructing us to cease doing so.”
This has consequences beyond abortion law. On Monday, the Georgia Department of Revenue issued guidance that taxpayers may claim unborn children as dependents once they qualify under the standard for a “detectable human heartbeat,” which, as the guidance notes, “may occur as early as six weeks’ gestation.” That is a good pro-life measure, offering the legal benefits of a tax deduction before birth.
In Louisiana, challenges on vagueness and other grounds have resulted in multiple injunctions, the latest of which was lifted by a state appeals court on Friday at the request of Louisiana attorney general Jeff Landry, who is vigorously defending the law. But cases are ongoing in many other states. And where state officials won’t enforce their laws, there are other options: In Michigan, a state intermediate appeals court ruled on Monday that local prosecutors could defend the state’s abortion law in court when the state attorney general refused to do so.
Defenders of legal abortion have grown accustomed to winning in court just on the basis of precedent and sympathetic judges. When forced to argue on the facts and judged on the same legal standards as any other litigant, they do not fare so well.