Biden administration’s strategy fails with court’s restoration of Idaho abortion ban

Other than for the life of the mother, the Idaho law’s only exception is for an instance of rape or incest that has been reported to police, with the requirement that a copy of the report be provided to the physician. 

Idaho Attorney General Raúl Labrador praised the Circuit Court’s ruling in a Sept. 29 statement. 

“Last year, the Supreme Court granted states the authority to establish their own abortion policies. In an effort to circumvent the Dobbs decision, the Biden administration baselessly sued the State of Idaho,” Labrador said.  

“I’m proud of the work my team has done, including collaborating with the Legislature’s counsel, to ensure Idaho’s sensible law continues to save the lives of babies and provides medical professionals with the ability to exercise their judgment to assist women who need emergency care.”

Strategy dead?

Katie Glenn Daniel, state policy director for the advocacy group SBA Pro-life America, told CNA that despite the DOJ attempting this strategy in several states, “trying to force exceptions into the law that is much broader than what the legislature passed and the governor signed,” courts have consistently ruled against them in light of the Dobbs decision. 

The Biden administration in 2022 made EMTALA a centerpiece of its response to pro-life state laws. In mid-2022, President Joe Biden issued an executive order in which he directed Secretary of Health and Human Services (HHS) Xavier Becerra to identify steps to ensure that patients, including “pregnant women and those experiencing pregnancy loss,” receive the “full protections for emergency medical care afforded under the law,” specifically mentioning EMTALA. 

In a July 11, 2022, letter to health care providers, Becerra instructed providers to perform abortions in emergencies — regardless of state law — under EMTALA. The Centers for Medicare and Medicaid Services (CMS), a division of the HHS, also issued a memorandum July 11, 2022, with the same instruction found in Becerra’s letter. 

However, U.S. courts have since ruled — correctly, Daniel asserted — that there is “no reason” EMTALA would supersede state law, and as a result “these agencies cannot rewrite their rules to be more pro-abortion than Congress intended.”

Indeed, the federal government is currently barred from enforcing its 2022 instructions due to a preliminary injunction amid a lawsuit against the instructions brought by Texas. 

Daniel said this latest loss in court for the Biden administration related to the Idaho law may signal that the administration will “pivot in other directions” and not rely on this EMTALA strategy in the future when it comes to pushing its pro-abortion agenda. 

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Other pro-abortion entities, however, are still pushing this strategy, she said. Daniel noted that the pro-abortion Center for Reproductive Rights (CRR) filed a complaint with the Department of Health and Human Services in September alleging that a hospital in Oklahoma violated EMTALA by not treating a woman for a molar pregnancy. CRR admitted in its complaint, however, that Oklahoma law didn’t prevent a woman from getting treated for a molar pregnancy, but rather individual doctors at the hospital decided to deny the woman care.