Idaho can enforce ‘total abortion ban’ during appeal

(CN) — Idaho can enforce a state law that criminalizes almost all abortions while the state appeals a federal judge's preliminary injunction of the statute, following a decision by the Ninth Circuit Court of Appeals.

The appellate court said in a ruling written by U.S. Circuit Judge Lawrence VanDyke, a Donald Trump appointee, that the district judge who had issued the injunction last year — in a lawsuit brought by the federal government — was wrong to conclude that the Idaho law was preempted by the U.S. Emergency Medical Treatment and Labor Act.

"The federal government will not be injured by the stay of an order preliminarily enjoining enforcement of a state law that does not conflict with its own," VanDyke wrote in the order issued Thursday. "Idaho, on the other hand, will be irreparably injured absent a stay because the preliminary injunction directly harms its sovereignty."

The purpose of the federal law isn't to impose specific standards of care, but to ensure that hospitals do not refuse essential emergency care to patients who can't pay for it, according to the Ninth Circuit analysis. To interpret the federal law as requiring a specific method of treatment, like providing abortions, pushes the statute beyond its purpose and isn't a ground to overrule Idaho’s "historic police powers."

Moreover, the Ninth Circuit said, after Senior U.S. District Judge B. Lynn Winmill in Boise issued the injunction last year, the Supreme Court of Idaho clarified the exception to the "total abortion ban" to mean that if a doctor subjectively believes, in his or her good faith medical judgment, that an abortion is necessary to prevent the death of the pregnant woman, then the exception applies.

This means, according to Thursday's ruling, that a doctor doesn't need to be 100% certain an abortion is necessary to save the life of a pregnant woman to be protected from prosecution — a threat that could interfere with their good faith medical judgment.

Also on the Ninth Circuit panel that issued the ruling were U.S. Circuit Judges Bridget Bade and Kenneth Lee, both Trump appointees,

Idaho’s “trigger ban” or “total abortion ban” was passed in 2020 and went into effect in August 2022 after the Supreme Court overturned Roe v. Wade. The law initially prohibited abortion at all pregnancy stages and threatened felony criminal sentences of two to five years in state prison.

Another Idaho law not only prohibits abortions after six weeks, but also allows the family of a fetus or embryo to sue an abortion provider for at least $20,000. It also imposed felony penalties and threatens revocation of a doctor's medical license.

Meanwhile, Idaho’s “abortion trafficking law” went into effect in May 2023, making it illegal for adults to assist minors in obtaining legal abortions out of state without the consent of their parents or legal guardians.

Amid tension over the fallout of the bans, the Idaho Legislature amended its total abortion ban to exclude instances of ectopic and molar pregnancies, and situations in which abortions are necessary to save a mother’s life or prevent a pregnancy caused by reported rape or incest, in the first trimester.

Earlier this month, Nancy Northup, the president and CEO of the Center for Reproductive Rights, issued a statement on how the demise of Roe v. Wade has led to several multi-state abortion bans that affect women who face serious complications in their pregnancies.

“No one should have to be at death’s door to receive essential health care," Northrup said, "but that is exactly what happens when doctors are forced to practice medicine under threat of imprisonment.”

Follow @edpettersson

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