On August 2, 2022, just a few weeks before Idaho's near-absolute abortion ban statute takes effect, the United States Department of Justice (“DOJ”) filed a lawsuit against the State of Idaho in the United States District Court for the Southern District of Idaho on the grounds that the state statute violates federal law. In its complaint, the DOJ argues that Idaho's state law must be declared invalid to the extent it is preempted by the federal Emergency Medical Treatment and Labor Act (“EMTALA”), and that Idaho should accordingly be enjoined from enforcing its state law insofar that its provisions conflict with EMTALA.
Hospitals choosing to participate in Medicare, including approximately 39 hospitals located in Idaho, are required to submit provider agreements to the Department of Health and Human Services (“HHS”) explicitly agreeing to comply with the obligations of EMTALA. Under EMTALA, participating hospitals must provide “necessary stabilizing treatment” to patients diagnosed with an “emergency medical condition.” The DOJ contends that several conditions arising from pregnancy, such as ectopic pregnancy, severe preeclampsia, or a pregnancy complication threatening septic infections or hemorrhage, could be identified as an emergency medical condition necessitating stabilizing treatment under EMTALA, but would nevertheless be considered an out-lawed abortion under Idaho's abortion ban statute.
Idaho's abortion ban statute, which will become effective on August 25, 2022 unless the court rules in favor of the DOJ in the interim, makes abortion a felony punishable by two to five years of imprisonment. Additionally, any medical professional who performs or attempts to perform an abortion in violation of the state law will have their professional license revoked for at least six months for the first offense, and any offense thereafter will result in permanent revocation of their license.
According to the DOJ, Idaho's statute conflicts with EMTALA because it prohibits even abortions deemed by treating physicians to be necessary stabilizing treatment which must be provided under EMTALA. The DOJ further argues that the threat of imprisonment and license revocation will impede the goal of EMTALA – to ensure that patients receive emergency medical care – because physicians will be deterred from performing even life-saving abortions they consider medically necessary. Leaving physicians in this “untenable” position, in the DOJ's own words, “threatens severe public health consequences.” Finally, by prohibiting Idaho hospitals from complying with certain requirements under EMTALA, the DOJ takes the position that the state law effectively denies the United States its end of the bargain with respect to the provider agreements hospitals submit to HHS to receive federal Medicare funding. That is, the United States provides Medicare funding to hospitals submitting such agreements (including those in Idaho) solely in exchange for the assurance that hospitals participating in Medicare will abide by their obligations under those agreements, including the obligation to provide stabilizing treatment to patients requiring emergency care in accordance with EMTALA.
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