Judge signals support for DOJ in challenge to Idaho abortion ban
Judge B. Lynn Winmill highlighted scenarios where the Idaho law appears to conflict with a federal law requiring hospitals to provide stabilizing care in emergencies.
At an oral argument Monday, senior U.S. District Judge B. Lynn Winmill asked skeptical questions of lawyers representing the Idaho state attorney’s office and the state legislature. He seemed to agree with DOJ’s argument that there is a clear conflict between the state law, which bans abortions in nearly all circumstances except to save the life of a pregnant patient, and the federal law known as the Emergency Medical Treatment and Active Labor Act or EMTALA, which requires all hospitals accepting Medicare funding to offer stabilizing treatment in emergency situations.
The Justice Department, which filed a lawsuit earlier this month, is seeking a preliminary injunction barring the state law from being enforced where it conflicts with federal law. The Idaho law is set to take effect on Thursday.
If Winmill, an appointee of former President Bill Clinton, decides to issue the injunction, it would mark a significant victory for the Justice Department’s effort to respond to the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization striking down the constitutional right to an abortion. But as the judge notes, the ruling would apply only in “very limited circumstances” where a patient needs an abortion to prevent serious long-term health complications.
“This is not a case about the wisdom of Dobbs or the wisdom of Roe v. Wade,” Winmill notes at the start of the nearly two-hour hearing. “Dobbs is the law of the land, and that will not be questioned.”
Idaho maintains that there is no conflict between the state law and EMTALA because the Idaho law allows doctors facing criminal charges to raise an affirmative defense that the abortion was necessary to save the life of the patient.
But Brian Netter, a deputy assistant attorney general in the civil division at Main Justice, says the harm to the federal government “takes place sooner.”
“The issue here is that, as physicians have told us, there will be a hesitance to comply with federal law,” Netter says.
During the argument, Winmill posed a pointed hypothetical to Idaho Deputy Attorney General Brian Church involving a pregnant woman who was having severe medical complications, and a doctor determined she had about a 50% chance of dying without receiving an abortion. If the doctor called Church to ask for legal advice, “do you advise that she can perform the abortion without risk of prosecution?” Winmil asks.
“I would advise on what the statute says,” Church responds, noting that a doctor can raise as a defense that they had a good-faith basis to believe the patient would have died without the procedure.
Winmill then raised the situation where the pregnant patient wasn’t likely to die, but was likely to have long standing damage to organs, a situation where EMTALA requires that hospitals offer stabilizing treatment.
Church again says he could advise only on what the Idaho law states.
Winmill says it was a “very lawyerly response,” but noted that his hypothetical appeared to indicate a situation where EMTALA mandates that a doctor perform an abortion, but where state law could expose that same doctor to criminal punishment.
“I’m trying to see how a real-life attorney dealing with a real-life doctor dealing with a real-patient would try to confront the statute,” Winmill says.
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Monte Stewart, of counsel at Wright Marsh and Levy, who is representing the state legislature in that case, said prosecutors would be unlikely to seek charges in such a situation.
“I would tell her ‘you go right ahead and use your best medical judgment, and you can do so without fear of prosecution,’” Stewart says. “In the real world, there will not be a prosecution.”
But Winmill was unconvinced by that argument. He indicated he was more interested in the language in the statute than in how prosecutors are likely to apply it.
“Judges are not issued some kind of crystal ball when appointed to the bench that allows them to see what the facts are, but we’re generally trained in interpreting statutorily language,” he says. He says the state’s argument would be “not much comfort” to doctors forced to decide in emergency situations whether to perform an abortion.
“The legislature would not have adopted the law unless they expected it would be enforced,” he says.