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Feds sue Idaho over near-total ban on abortion

Idaho's controversial new law makes receiving or providing an abortion a felony offense punishable by two to five years in prison.

(CN) — This year, Idaho became of one the first states to pass a law modeled after Texas’ abortion ban, allowing would-be family of an unborn child to sue physicians who perform abortions after a detectable heartbeat. But following the Supreme Court’s decision on Dobbs v. Jackson Women’s Health Organization, the state is now implementing a near-total ban on abortions, making the procedure, or any resemblance of it, a felony offense.

Or, at least, that’s what Idaho wants to do.

On Tuesday, President Joe Biden announced the U.S. Justice Department filed a lawsuit against the state, claiming Idaho Code § 18-622 conflicts with the federal Emergency Medical Treatment and Labor Act’s ability to protect medically necessary abortions in emergency situations.

“On the day Roe and Casey were overturned, we promised that the Justice Department would work tirelessly to protect and advance reproductive freedom,” said Attorney General Merrick Garland in a statement. “That is what we are doing, and that is what we will continue to do. We will use every tool at our disposal to ensure that pregnant women get the emergency medical treatment to which they are entitled under federal law. And we will closely scrutinize state abortion laws to ensure that they comply with federal law.”

Should Idaho’s new law go into effect on Aug. 25, anyone who receives an abortion or a treatment resulting in child loss is subject to two to five years in prison. Providers found guilty of providing these services are also at risk of arrest and loss of their medical license, preventing them from providing, potentially, life-saving operations.

“Under the Idaho law, once effective, any state or local prosecutor can subject a physician to indictment, arrest, and prosecution merely by showing that an abortion has been performed, without regard to the circumstances," the Justice Department says in its complaint.

However, federal law requires Idaho hospitals that receive Medicare to provide necessary stabilizing treatment to patients in emergency rooms — any treatment needed to protect a patient’s health from serious jeopardy, bodily impairment or the dysfunction of any body part. If a physician determines that an abortion fits the bill, state law cannot legally impede the process of providing that care under the act.

“Federal law is clear: patients have the right to stabilizing hospital emergency room care no matter where they live,” said Health and Human Services Secretary Xavier Becerra in a statement. “Women should not have to be near death to get care. The Department of Health and Human Services will continue its work with the Department of Justice to enforce federal law protecting access to health care, including abortions.”

The state’s criminal prohibition of abortions is subject to two limited affirmative defenses, one of which forces physicians to prove an abortion was either necessary to save a pregnant woman’s life or to save an unborn child. The caveat: Doctors cannot say an abortion is medically necessary if a woman is having a mental health crisis and may harm herself.

Additionally, the statute requires those who are pregnant because of rape or incest to report their experience to law enforcement and provide their doctor with the criminal report before an abortion may proceed. Only then, if proven, does a victim of rape or incest have a chance of avoiding a prison sentence for an abortion.  

“Our nation’s highest court returned the issue of abortion to the states to regulate — end of story,” said Idaho Governor Brad Little in a response to the lawsuit. “The U.S. Justice Department’s interference with Idaho’s pro-life law is another example of Biden overreaching yet again while he continues to ignore issues that really should demand his attention—– like crushing inflation and the open border with Mexico.”

He added: “Here in Idaho, we are proud that we have led the country in protecting preborn lives. I will continue to work with Attorney General Lawrence Wasden to vigorously uphold state sovereignty and defend Idaho’s laws in the face of federal meddling.”

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