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AG Nessel Joins Multistate Coalition in Amicus Brief Challenging Idaho’s Near Total Ban on Abortion

The amicus brief supports the federal government’s motion for preliminary injunction to block enforcement of the Idaho law.

LANSING – Michigan Attorney General Dana Nessel joined a coalition of 21 attorneys general, led by California and New York, in filing an amicus brief in support of the federal government’s motion for preliminary injunction to stop enforcement of Idaho’s near total ban on abortion. The brief, filed in United States of America v. Idaho, argues that Idaho’s abortion ban conflicts with the Emergency Medical Treatment and Labor Act (EMTALA), puts at risk the lives and health of individuals with pregnancy-related emergency medical conditions, and places additional strain on the public health systems of states that protect abortion.

"Idaho's abortion ban is an attempt at an end-run around EMTALA," Nessel said. "If this ban is enforced, it will mean the denial of critical medical care to women who need it and may place their lives and health in jeopardy. Emergency facilities in every state in the nation are required to abide by EMTALA and Idaho should be no exception. I proudly stand with my colleagues in supporting this preliminary injunction."

In 2020, Idaho enacted S.B. 1385, which criminalizes all abortions and imposes prison time on anyone who performs, assists, or attempts to perform an abortion – even in the context of emergency care. With the Supreme Court’s ruling in Dobbs v. Jackson Women's Health Organization overturning Roe v. Wade, Idaho’s law was triggered to automatically take effect on August 25. The U.S. Department of Justice filed a lawsuit challenging Idaho’s ban on August 2, arguing that it conflicts with protections afforded by EMTALA, a federal law requiring doctors to provide medically necessary treatment to pregnant people, including abortion care. This multistate amicus brief supports the federal government’s challenge.

In the brief, the Amici states argue that Idaho’s abortion ban violates EMTALA by banning medically necessary emergency abortion care. Every hospital in the nation that operates an emergency department and participates in Medicare is subject to EMTALA — criteria met by virtually every hospital in the United States. Under the law, emergency rooms are required to provide all patients who have an emergency medical condition with the treatment required to stabilize the medical condition. Many patients seek emergency medical care due to pregnancy-related medical emergencies that may require abortion care, including ectopic pregnancy, hemorrhage, amniotic fluid embolism, pre-labor rupture of membranes, intrauterine fetal death, and hypertension. If immediate treatment is not provided, these medical conditions could jeopardize patients’ health and even result in disability or death. Decades of federal guidance and court precedence have held that stabilizing treatment under EMTALA includes emergency abortion care. Under Idaho’s law, healthcare providers would face criminal prosecution, or lose their license for providing this medically necessary care.

The Amici states argue that preventing hospitals from performing abortions needed to treat an emergency medical condition, as determined by a treating physician, threatens the health and lives of pregnant patients. Many pregnancy and miscarriage complications are emergency medical conditions requiring time-sensitive stabilizing treatment that can include abortion. In an emergency situation, any failure to provide, or delays in providing, necessary abortion care can put at risk the pregnant patient’s life or health.

The brief also argues that allowing Idaho to ban abortion care, including in medical emergencies where it is required under EMTALA, risks significant effects in other states as well. If hospitals in states like Idaho fail to comply with their obligations under EMTALA, Amici states anticipate even further strain on health systems in their home states. Emergency rooms in neighboring states that protect abortion will be forced to absorb the resulting out-of-state patient need for emergency medical care all while the states continue to wrestle with an ongoing global pandemic and new public health crises. Idaho’s law also puts at risk the rights of Amici state residents who may need emergency medical care while working, studying, or visiting Idaho and other states that may also attempt to prohibit emergency abortion care contrary to EMTALA’s requirements.

In filing the brief, AG Nessel joined the attorneys general of California, New York, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Washington, and the District of Columbia.

A copy of the brief is available here.