Idaho attorney general projects optimism Supreme Court won’t overturn abortion law – Washington Examiner

Idaho Attorney General Raul Labrador told the Washington Examiner in an exclusive interview that he is optimistic in the weeks leading up to oral arguments in a critical Supreme Court case that could threaten the state’s near-total abortion ban and similar laws across the country.

The Biden administration has sued to halt Idaho’s abortion ban on the argument that it violates federal law requiring emergency room physicians to provide “necessary stabilizing treatment” to all patients under the Emergency Medical Treatment and Active Labor Act, or EMTALA, because the state law prohibits all abortions except for cases of rape and incest, even under potentially life-threatening circumstances.

If the Biden administration were successful in winning its case in the high court, it would undermine many of the abortion restrictions put in place by several states following the overturning of Roe v. Wade in June 2022, a decisive blow to anti-abortion advocates ahead of the 2024 election.

“The Supreme Court wants to have a say on this issue,” Labrador said. “We’re preparing our case and making sure that we can get the best defense possible.”

Path to the Supreme Court

Immediately following the overturning of Roe, Idaho’s ban on abortion took effect, prohibiting all abortions except for those performed in the first trimester in cases of rape or incest.

Soon after, the Biden administration successfully sued in federal district court, enjoining the anti-abortion law as a violation of EMTALA.

On appeal, a three-judge panel of 9th Circuit Court of Appeals initially reversed the decision of the district court, upholding the abortion ban as valid. An en banc panel of 11 judges, though, issued an injunction on the law, yet again blocking its implementation.

The conservative legal advocacy organization Alliance Defending Freedom called the en banc panel’s injunction “an unreasoned, one-sentence order.”

ADF and the law firm Cooper & Kirk were invited by Labrador to join the legal team on the case when the Supreme Court issued a stay on the 9th Circuit’s ruling in January, allowing Idaho’s abortion prohibition to take effect until the high court makes an official decision in the case.

Emergency medical treatment or prohibited abortion

EMTALA was passed by Congress in 1986 to ensure that emergency room physicians and staff provide care to all patients, regardless of ability to pay. 

The text of EMTALA specifically references “the unborn child” four times as a patient also worthy of stabilization under emergency circumstances. It says that the health of the individual patient could refer to “the woman or her unborn child” in the context of a pregnant woman. 

The Biden administration’s argument is that an abortion procedure can fit the statutory definition of a “necessary stabilizing treatment” within EMTALA in certain nonlethal conditions — such as infection, preeclampsia, or premature rupture of membranes. 

“The Biden administration decided to be creative with a law that has never been interpreted this way,” Labrador said, “and eventually it’s going to harm women and children.”

The Biden administration contends that EMTALA requires hospitals to offer all possible treatment options to stop the emergency, including in some circumstances ending the life of the fetus in order to save the woman.

“Both Idaho law and EMTALA, their mission and their goal is to protect the lives of pregnant women and the lives of unborn children, and I believe that the Biden administration is completely misconstruing and misreading the statute,” Labrador said. 

Labrador said that the abortion ban does not prevent physicians or other healthcare providers from treating pregnant women for life-threatening conditions, such as an ectopic pregnancy or a miscarriage. Rather, he said, the legal confusion over what to do in emergency circumstances is politically motivated by abortion-rights advocates.

“Instead of having their lawyers explain to doctors how clear our law is that yes, they can provide life-saving care in an emergency situation, they try to confuse the doctor so they feel like they’re somehow being targeted,” Labrador said.

Cautious optimism

Labrador said he is hopeful that the Supreme Court’s decision to take up the case is a signal that Idaho’s abortion law and its interpretation of EMTALA will stand.

“It’s hard to read the tea leaves with the Supreme Court,” Labrador said, adding that issuing a stay “usually means that there’s a majority of the Court that thinks there’s a likelihood of success on the merits. But you can’t ever take anything for granted.”

Labrador said that he believes the Biden administration chose to challenge the law in Idaho, rather than in any of the 14 other states that have prohibited abortion at all 40 weeks of pregnancy, because the federal district court in the state and the 9th Circuit are more friendly to abortion-rights arguments.

“I don’t think they were expecting to have somebody to vigorously defend the laws of the state of Idaho,” Labrador said.

Labrador has been attorney general since 2022. Before then, he served in the House of Representatives from 2011 to 2017 and as the chairman of the Idaho Republican Party from 2019 to 2020. He ran an unsuccessful campaign for governor in 2018.

Implications for OB-GYN care in Idaho

Abortion-rights advocates say that abortion restrictions have a negative effect on access to obstetrics and gynecology care, heightening existing shortages in rural communities across the country.

A report from the Idaho Coalition for Safe Healthcare and the Idaho Physician Well-Being Action Collaborative published in February found that the Gem State lost approximately 22% of its obstetricians following the institution of the abortion ban. 

The findings indicate that the number of practicing OBs fell from 268 in August 2022 to 210 in November 2023, resulting in a ratio of slightly over two OBs per 10,000 women in the state.

Of those OBs still in practice, nearly 85% practice in the most populous counties in the state, with only half of all 44 counties in the state having at least one OB.

When asked about the fears of OB-GYNs leaving the state, Labrador discounted ICSH’s study, saying it was biased in favor of abortion-rights supporters.

Although the data from the study relies on public records to corroborate the number of OB-GYNs in the state, Labrador noted, the footnotes indicate that the data are also derived from what ICSH calls “local knowledge from members.”

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“Idaho has been one of the best places for doctors to practice medicine,” Labrador said. “It’s always been a pro-life state.”

Oral arguments before the Supreme Court are scheduled for April 23, with a final decision likely to be released in June.