Idaho’s ‘total abortion ban’ gets full panel treatment at Ninth Circuit

(CN) — The Ninth Circuit Court of Appeals agreed to have an en banc panel of 11 judges review Idaho's "total abortion ban," after a three-judge panel of Donald Trump appointees ruled last month that the state could enforce the law, which criminalizes almost all abortions.

Chief U.S. Circuit Judge Mary Murguia of the San Francisco-based appellate court said in an order Tuesday that a majority of the judges had voted to rehear the case, and the court vacated the Sept. 28 decision, which had stayed an injunction of the abortion law.

In last month's ruling, written by U.S. Circuit Judge Lawrence VanDyke, the appellate court said a lower court judge in Boise who had issued the injunction last year against enforcing the ban — part of 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 said. "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 VanDyke's 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 three-judge panel concluded, 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.

Days after the Sept. 28 decision, the U.S. Justice Department filed an emergency request for a rehearing en banc, saying the findings by the three-judge panel involved questions of exceptional importance and conflicted with a precedent from the Fourth Circuit Court of Appeals in Richmond, Virginia.

The ruling "allows Idaho to begin enforcing an abortion ban—which has never previously been in effect in the Medicare-participating hospitals at issue—in circumstances where that law is preempted by a federal statute," the U.S. said. "Federal law guarantees access to abortion care when that treatment is necessary to stabilize emergency medical conditions that put an individual’s 'health' in 'serious jeopardy,' or when the individual risks 'serious impairment to bodily functions' or 'serious dysfunction of any bodily organ or part.'”

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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