The ACLJ Files Amicus Brief Asking Court To Throw Out Biden Administration's Outrageous Lawsuit Against Idaho's Abortion Ban


Laura Hernandez

August 19, 2022

4 min read

Pro Life



The ACLJ just filed an amicus brief defending 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.” Effective August 25th, 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.

In its Complaint, the Biden Department of Justice (DOJ) asked a federal district court to enjoin Idaho’s abortion law, claiming that it conflicts with a federal law requiring hospitals who receive Medicare funding to administer emergency care to patients regardless of their ability to pay. The law is called the Emergency Medical Treatment and Labor Act (EMTALA).   The DOJ’s lawsuit is based solely on speculation and alleges no actual harm to anyone. As we told you earlier, the DOJ worries that it “might” be necessary to perform an abortion to preserve the mother’s health from serious injury, even though her life is not in danger. In that instance, Idaho’s abortion ban “might” conflict with EMTALA.

Now in our litigious society, it might seem like anyone can file a lawsuit any time.  But that is not actually true, and there are especially strict rules governing when federal court lawsuits are permitted.  And yes, even the DOJ must comply with those rules. When the DOJ sues a sovereign state in an attempt to thwart the state’s right to make abortion policy, that is more than just a disregard of the rules. It is a broadside attack on federalism, a key feature of our governmental structure.

As we explained in our brief, “the federal government’s lawsuit is a transparent attempt to use [EMTALA] to coerce compliance with the Administration’s preferred abortion policy by hauling a sovereign state into federal court seeking equitable relief for violations of EMTALA that may never occur.” We explained further that dismissal of the DOJ’s complaint is essential to preserving federalism, because otherwise “there would be no limit on the federal government’s power to swoop into federal court for the purpose of dictating state policy.”

Not only does the DOJ’s lawsuit intrude on state powers, it also violates the separation of powers by intruding on Congress’s authority. In our system, Congress enacts federal laws and Congress has the authority to establish how those laws are enforced. When the DOJ decides it has the authority to enforce federal law in the manner of its choosing, it trespasses on Congress’s authority. Our brief states that the Constitution does “not provide for government by injunction in which the courts and the Executive Branch can make law without regard to the action of Congress.”

Idaho district court decisions are appealed to the Ninth Circuit Court of Appeals, and our brief concluded by quoting a controlling Ninth Circuit case:

The need to protect the individual branches of government from intrusion is a task not to be taken lightly. Just as any potential abuse of the judiciary must be curbed, any attempt by the executive branch to encroach in an area properly reserved for Congress must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Hopefully, the Idaho district court will heed the Ninth Circuit’s instruction.

The hearing will be next week on August 22nd, and we expect a quick ruling from the judge, given that Idaho’s abortion law takes effect on the 25th.  With your ongoing support, we will continue the fight to protect and promote pro-life legislation in the states.