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Judge hears last-ditch bid to block parts of Idaho abortion law

Unless the court blocks it, Idaho’s abortion law is set to go into effect on Thursday.

(CN) — A federal judge heard oral arguments Monday in the federal government’s last-ditch effort to block portions of Idaho’s law, which will ban nearly all abortions in the state if it takes effect later this week.

The Department of Justice wants U.S. District Judge B. Lynn Winmill to block portions of the state’s abortion law that the agency says conflict with the federal Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals receiving federal Medicaid funding to provide emergency care to patients.

As the DOJ sees it, the law will have a chilling effect on doctors who fear they might face criminal prosecution for performing emergency abortions, though the state insists the predicted harm is not sufficient to override the law.

The Clinton-appointed judge asked what legal advice the state’s counsel would give to a “risk-averse” emergency room doctor who does not want to be prosecuted for performing an abortion, but has a patient with a life-threatening, pregnancy-related condition that leaves a fifty-fifty chance of survival without one.

“As her attorney, do you advise her that she can perform the abortion under the statute without any risk of prosecution?” Winmill asked.

Deputy Attorney General Brian Church pointed out that Idaho’s law contains “no risk or no fifty-fifty risk requirement” that death be imminent, rather, it “simply” applies where the abortion is necessary to save the life of a pregnant patient.

Asked what would happen if the doctor could not say whether it was medically necessary, and was instead a fifty-fifty chance, Church said the doctor could consider consulting not only with legal counsel but also “with other physicians.”

Probing further, the judge questioned what would happen if it was a “critical medical situation” where the doctor has to decide “immediately” what to do.

“Well, your Honor, you know, as the attorney for the hospital, you can only advise on what the law is,” Church said.

The doctor must determine her good-faith medical judgment, the Idaho attorney said, concerning whether the abortion was necessary to preserve the life of the pregnant patient.

“And if she gets it wrong,” Winmill said, then she is prosecuted, charged, arrested and has a chance to argue in court that her medical judgment was right that a fifty-fifty chance of survival is “enough to say” that it was necessary to prevent the patient’s death.

When asked whether the hypothetical legal advice for the doctor would be the same if the pregnant patient could sustain bodily injuries, the deputy attorney general did not budge.

If the doctor cannot testify, he said, that it was her “good-faith medical belief” that an abortion was necessary to preserve or prevent the death of a pregnant patient, then the affirmative defense would be “inapplicable now.”

Judge Winmill chimed in again, quipping “and the doctor could face criminal prosecution and up to two years in prison,” to which the attorney conceded. “Subject to what I’ve just said, yes.”

Describing it as a very “lawyerly” response, the judge then heard rebuttal from the federal government’s attorney, who said the Winmill’s fifty-fifty hypothetical is exactly the type of situation that the DOJ’s lawsuit is trying to prevent.

If an emergency room doctor “hesitates” and has to “call the lawyers” to get a legal opinion because it “seems like” Idaho’s law might be violated, “this is all in conflict with EMTALA and federal law.”

A direct conflict exists, he said, because the doctor’s hesitation would be an “obstacle” to the federal government’s duty under EMTALA, which requires the care “to be offered at the point where it’s necessary.”

“Every time EMTALA mandates care,” he said, “Idaho must yield.”

The federal government, he said, is suing to make sure Medicare agreements it has with at least 39 of the state’s estimated 43 hospitals are being followed, which means ensuring emergency care promised by EMTALA is “actually delivered.”

Judge Winmill said while events in the real world are “hard to predict,” the text of the state abortion statute is “easy to understand,” and the bottom line in case law is that “text matters.”

“Judges are not issued some kind of crystal ball when they’re appointed to the bench that allows them to see what the facts are,” he said.

This case “kind of underscores” why case law is clear that courts need to look at the text and determine whether there is a conflict between federal and state law, Winmill said.

“Simply put, doctors in emergency rooms and labor and delivery rooms around the state are going to be forced to navigate their way through this conflict between the [Idaho] abortion statute and EMTALA,” he said.

He added there is not “much comfort” for a doctor in that there could be a state prosecutor who they think might not enforce it, “but no one knows for sure,” he said.

“We look at statutory language, we don’t guess about what a prosecutor will or won’t do,” Winmill said.

A decision is expected to be issued no later than Wednesday, one day before the law is set to take effect.

Earlier this month, the Idaho Supreme Court issued a 3-2 ruling denying abortion groups’ attempt to block the law while litigation plays out in the courts.

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