The ACLJ Is Preparing To File Amicus Brief Urging Dismissal of Outrageous Biden Administration Lawsuit Against Idaho Abortion Ban


Laura Hernandez

August 15, 2022

3 min read

Pro Life



President Biden’s DOJ has filed an outrageous lawsuit – the first of its kind after the Supreme Court overturned Roe v. Wade – seeking to block a state abortion ban.

The American Center for Law and Justice (ACLJ) is preparing to file an amicus brief defending Idaho’s new law banning abortion.  Idaho’s pro-life law, scheduled to become effective on August 25, 2022, provides “[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, and also includes a life of the mother exception. As we have explained here, the Biden Administration is on a mission to federalize a right to abortion. Unhappy with the Supreme Court’s clear instruction in Dobbs that the issue must be returned to the states, the Administration has adopted several strategies to thwart state enactment of pro-life legislation. One strategy is apparently to bring frivolous lawsuits against those states.

In its complaint, the Department of Justice asked a federal district court to enjoin Idaho’s abortion law because 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).  If you are scratching your head trying to figure out how an abortion ban conflicts with hospitals providing emergency care, you are probably not alone. EMTALA never mentions abortion and, in fact, actually requires hospitals to “stabilize” and “minimize risk” to the unborn child.

Nevertheless, the DOJ alleges that there might possibly be some instances in which having an emergency abortion is necessary to preserve the health of the mother from “serious medical jeopardy.” Essentially, the DOJ’s case consists of speculation and contingencies. The DOJ contends that EMTALA requires hospital emergency rooms to stabilize the health of patients, that pregnant women might need emergency care to stabilize them, and that an abortion just might be the treatment that will stabilize them. A pretext for attacking a facially valid pro-life law, the DOJ’s entire case is premised on something that may never occur. The Idaho law in question already has an express exception where the life of the mother is in danger. 

Because the DOJ asked the court to issue a preliminary injunction against Idaho’s law before August 25, the briefing in the case is on a fast track.  The ACLJ will file its brief later this week, arguing that DOJ lacks authority to even bring this attack on Idaho’s sovereign right to set its own abortion policy. The Supreme Court was crystal clear: Abortion is a state, not a federal issue.

With your ongoing support, we will continue the fight to protect and promote pro-life legislation in the states.