DOJ Sues Idaho Over “Near-Total Ban” on Abortion

The Justice Department filed a lawsuit against Idaho over the state’s law banning abortion after six weeks, Attorney General Merrick Garland announced Tuesday.

The legal filing marks the first time President Joe Biden‘s Justice Department launched a challenge against a state for abortion restrictions since the landmark June 24 Dobbs v. Jackson Women’s Health Organization decision overturned a half-century of abortion access precedent, which the president decried as a “realization of an extreme ideology and a tragic error by the Supreme Court.”

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The suit, filed in the U.S. District Court for the District of Idaho, contends that the federal Emergency Medical Treatment and Labor Act preempts the state law. The federal law requires physicians to perform medically stabilizing abortions in an emergency.

Garland explained there are circumstances in which abortion is “necessary” if a patient is undergoing an unstable condition during pregnancy.

“This may be the case, for example, when a woman is undergoing a miscarriage that threatens septic infection or hemorrhage or is suffering from severe preeclampsia,” Garland said, referring to a disorder that can cause fatal outcomes to women undergoing unstable pregnancies.

Associate Attorney General Vanita Gupta, who leads the reproductive rights task force, said the DOJ is seeking a declaratory judgment that Idaho’s law “violates the supremacy clause of the United States Constitution and is preempted by federal law where it conflicts with EMTALA.”

The federal agency’s lawsuit noted that the state has “passed a near-absolute ban on abortion,” which after taking effect on Aug. 25 will make it a criminal offense to perform an abortion “in all but extremely narrow circumstances.”

Health and Human Services Secretary Xavier Becerra also released a statement following the DOJ’s announcement, saying the department will continue to partner with the DOJ to enforce federal laws protecting healthcare “including abortions.”

“Federal law is clear: patients have the right to stabilizing hospital emergency room care no matter where they live. Women should not have to be near death to get care,” Becerra wrote.

Meanwhile, the Idaho Supreme Court is slated to hear arguments Wednesday on challenges over its near-total abortion ban, according to the Idaho Press. Attorneys for Idaho will seek to protect three separate restrictive abortion laws passed by the state.

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Garland responded to a question Tuesday by a reporter who asked what the point of the June 24 Supreme Court ruling was if the DOJ plans to “go around” the recent decision that allowed states to impose laws severely restricting abortion access.

“This is not in any way going around the Supreme Court. The Supreme Court said that each state can make its own decisions with respect to abortion, but so, too, can the federal government,” Garland said.