Ninth Circuit to Rehear Key Abortion Ban Case En Banc After Panel Stayed Lower Court’s Injunction of Idaho’s Abortion Ban

Recently, a 3-judge panel of the Court of Appeals for the Ninth Circuit stayed the district court’s injunction against Idaho’s new law banning abortion. As we explained here, Idaho’s pro-life law provides that “[e]very person who performs or attempts to perform an abortion . . . commits the crime of criminal abortion.” The law imposes penalties of two to five years’ imprisonment and license suspension for medical professionals who perform or assist in performing the abortion. The law includes exceptions for rape, incest, and when the life of the mother is in danger.

As we told you earlier, the Department of Justice (DOJ) sued the state of Idaho, claiming that Idaho’s abortion ban conflicts with a federal law requiring hospitals that receive Medicare funding to administer emergency care to patients regardless of their ability to pay. The law is called the Emergency Medical Treatment and Active Labor Act (EMTALA). EMTALA’s sole purpose is to ensure that everyone who goes to an emergency room gets the health care they need regardless of whether they have health insurance. The law says nothing about abortion, but it does require hospitals to give pregnant mothers care that “stabiliz[es] the unborn child.”

The district court judge, appointed by President Clinton, enjoined Idaho’s law, accepting the DOJ’s frivolous arguments, and ignoring in the process controlling precedent from the Court of Appeals for the Ninth Circuit.

Idaho appealed to the Court of Appeals for the Ninth Circuit, and the ACLJ joined in support. Less than two months later, the Ninth Circuit panel issued a stay of the district court’s injunction, which would have allowed Idaho’s lifesaving law to go into effect.

The Ninth Circuit rejected in its entirety the district court’s analysis that EMTALA preempts Idaho’s abortion ban. In fact, the court began its opinion recognizing that in “Dobbs v. Jackson Women’s Health Organization, the Supreme Court ‘heed[ed] the Constitution and return[ed] the issue of abortion to the people’s elected representatives.’”

The court proceeded to dismiss each of the DOJ’s arguments, concluding:

It is not the purpose of EMTALA to force hospitals to treat medical conditions using certain procedures. Instead, EMTALA seeks to prevent hospitals from neglecting poor or uninsured patients with the goal of protecting “the health of the woman” and “her unborn child.” [Idaho’s abortion ban provisions] do not pose an obstacle to EMTALA’s purpose because they do not interfere with the provision of emergency medical services to indigent patients.

The court’s decision to stay the lower court’s injunction reflects a substantial likelihood the court will permanently reverse the district court. The DOJ certainly read the decision that way because it immediately filed an emergency request asking the full Ninth Circuit to reconsider its ruling. Yesterday, the full Ninth Circuit agreed to rehear the case en banc. This vacates the panel ruling as the case is reheard afresh by 11 Ninth Circuit judges. Our amicus brief is part of the appellate record which the court will consider.

With your ongoing support, we will continue to support the state of Idaho every step of the way, even to the Supreme Court of the United States, if necessary.