An Abortion Ban in Idaho Was Just Blocked. Kind Of.

A federal judge blocked part of a law to ban abortion in Idaho late Wednesday, after the Biden administration sued to halt the law. This was the administration’s first lawsuit to protect abortion rights since the Supreme Court overturned Roe v. Wade earlier this summer.

In his preliminary injunction, U.S. District Judge B. Lynn Winmill said that a portion of the Idaho law conflicts with federal law over how to handle medical emergencies—namely, by hindering doctors’ ability to treat patients who might need abortions to protect their health.

“If the physician provides the abortion, she faces indictment, arrest, pretrial detention, loss of her medical license, a trial on felony charges, and at least two years in prison,” Winmill wrote. “Yet if the physician does not perform the abortion, the pregnant patient faces grave risks to her health—such as severe sepsis requiring limb amputation, uncontrollable uterine hemorrhage requiring hysterectomy, kidney failure requiring lifelong dialysis, hypoxic brain injury, or even death.”

Winmill let the rest of Idaho’s ban take effect, outlawing almost all abortions in the state. 

But had the Idaho abortion ban gone fully into effect, it would not have prevented doctors from being charged with a crime even if they only performed an abortion to save a patient’s life. Instead, that doctor could only have used those circumstances as a defense at trial.

Winmill stressed that his decision was not a challenge to Dobbs v. Jackson Women’s Health Organization, the case used to overturn Roe. 

“It’s not about the bygone constitutional right to an abortion. This Court is not grappling with that larger, more profound question,” Winmill wrote. Rather, the Court is called upon to address a far more modest issue—whether Idaho’s criminal abortion statute conflicts with a small but important corner of federal legislation. It does.”

Since Roe’s overturning and the subsequent wave of abortion bans, doctors have wrestled with how to deal with restrictions on their ability to perform abortions in medical emergencies. Several states’ abortion restrictions have exceptions for circumstances where the procedure may necessary to preserve a patient’s health or save their life, but the exact contours of what that care constitutes can differ from law to law and may not always match up with the nuanced reality of pregnancy. 

Some doctors have told VICE News that they feel like they are being forced to delay care until a patient is teetering on the precipice of death—and then are expected to snatch them back from the ledge. 

“That's part of the problem with these laws, is that as they're written, most of the time, they're not including medical professionals that actually provide this type of care,” Dr. Ana Tobiasz, a North Dakota maternal fetal medicine specialist, told VICE News earlier this summer. “And so they put that language in there, not realizing that now you have effectively banned all of these standard medical procedures.”

Shortly after the Supreme Court overturned Roe, the Biden administration issued guidance clarifying that the federal Emergency Medical Treatment and Labor Act (EMTALA), which outlines some medical providers’ responsibilities in emergencies, can also require them to perform abortions if necessary to stabilize a patient.

EMTALA, which lay at the heart of the Idaho case, also arose in a case in Texas this week. Texas Attorney General Ken Paxton had asked a judge there to block the Biden administration’s guidance, which he agreed to do for that state. 

The Biden administration’s “guidance goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict,” U.S. District Judge James Wesley Hendrix wrote in his court order Tuesday.

Idaho isn’t the only state with a new abortion ban triggered by the fall of Roe: Near-total bans in Oklahoma, Tennessee, and Texas are also set to take effect Thursday. North Dakota is also on track to outlaw almost all abortions on Friday.

This spate of new laws comes after many of these states already significantly limited access to abortion. Texas has had a six-week abortion ban on the books since last September, when it started letting people sue one another over abortions roughly past that point, while Oklahoma started letting people sue over almost all abortions in May. Tennessee and Idaho had also previously started enforcing six-week abortion bans.

In a statement, Attorney General Merrick Garland said that the Justice Department disagreed with the decision about EMTALA in Texas and is now weighing “appropriate next steps.” The two dueling court orders, from Idaho and Texas, suggest that the Supreme Court could soon be asked to rule on the issue of how to handle abortion in medical emergencies.

“The Department of Justice will continue to use every tool at its disposal to defend the reproductive rights protected by federal law,” Garland said.