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The Stakes of Idaho Asking the Supreme Court to Allow Near-Total Abortion Ban

Idaho officials on Monday asked the Supreme Court to restore a strict abortion law that would allow the state to prosecute physicians conducting abortions in some cases. If the Supreme Court decides to weigh in, it would be the first time the nation’s highest court would render a judgment on punishing abortion-providing doctors after overturning the constitutional right an abortion.

The Idaho law, enacted in the wake of the Supreme Court’s decision last year in Dobbs v. Jackson Women’s Health Organization, allows state officials to prosecute or revoke the professional license of doctors who perform abortions, except in cases where it is necessary to prevent the woman’s death or when the pregnancy results from rape or incest.

It’s unclear if the Supreme Court will step in, but the justices are yet to schedule an abortion hearing since the Dobbs decision. “It’s pretty routine when you lose in the lower court to ask the Supreme Court to intervene,” says Mary Ziegler, a law professor at the University of California at Davis with an expertise in abortion. “Whether the court is willing to intervene or even wants to deal with yet another abortion case is a trickier question.”

Idaho’s law is one of the strictest in the nation, and whether the Supreme Court gets involved will have legal and political ramifications in the country’s shifting abortion landscape. A ruling against Idaho “may discourage states from going as far as Idaho has,” says Ziegler. “There’s also the politics of it, where we’ve seen voters being increasingly unhappy with sweeping abortion bans.”

Read More: Idaho’s New Law Will Punish Anyone Helping a Minor Access an Out-of-State Abortion With Up to 5 Years in Prison

The legal battle in Idaho is part of a broader wave of challenges following the Dobbs decision. Idaho’s near-total abortion ban has been contested in courts for over a year. After an initial appeal by the state, a panel of three judges from the U.S. Court of Appeals for the 9th Circuit issued a ruling that would have allowed the law to take effect. However, an en banc panel of 9th Circuit judges later put the law on hold earlier this month.

The law was originally challenged in court by the Biden Administration, which argued that the Idaho law would inhibit emergency room doctors from performing abortions that are necessary to stabilize the health of women facing medical emergencies and violated the federal Emergency Medical Treatment and Labor Act (EMTALA), a provision of a federal Medicare statute that bars states from imposing restrictions that would prevent emergency room doctors from treating patients.

U.S. District Judge B. Lynn Winmill ruled in favor of the Biden Administration in August 2022, claiming that Idaho officials cannot enforce the abortion law against doctors who are also obligated to follow the federal EMTALA. Winmill expressed concern that doctors in emergency rooms could face an impossible task of complying with both federal and state law, given the complex and chaotic nature of emergency medical situations. A three-judge panel of the 9th U.S. Circuit Court of Appeals in September at first agreed to let Idaho enforce its ban pending appeal, but then the full panel of appeals judges in November lifted the stay, effectively meaning the law cannot go into effect.

In a court filing on Monday, Idaho’s Republican attorney general urged the Supreme Court to step in on an emergency basis to put the district court’s ruling on hold while it appeals the decision, claiming that it marked “an ongoing violation of both Idaho’s sovereignty and its traditional police power over medical practice.”

Idaho officials also argued that both Winmill’s initial decision and the recent 9th Circuit ruling infringe on the Supreme Court’s endorsement of states’ rights in the Dobbs decision. Idaho officials, represented by a conservative legal group that opposes abortion, contend that the federal emergency care law in question, EMTALA, is intended to prevent “patient dumping” rather than allowing the federal government to dictate state abortion law.

The Idaho case comes more than a year after abortion laws were thrown into turmoil following the Supreme Court’s decision to overturn Roe v. Wade, a longstanding ruling that guaranteed abortion rights to women nationwide.

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