Idaho You're Out Of Control

You're livin' in your own private Idaho
Idaho you're out of control

…Keep off the patio
Your own private Idaho
Keep off the path
Your own private Idaho
The lawn may be green
But you better not be seen

—The B-52’s

There’s been a tumult of legal/political news in the last few weeks, but instead of surveying it all tonight, I want to share a deep dive into one piece that you could be forgiven for overlooking in the deluge.

We all get that voting matters. Earlier this week, DOJ filed a lawsuit that drives that point home in a powerful manner. The case is United States v. Idaho, and the legal issue is a clever one, involving the use of a relatively obscure federal law, the Emergency Medical Treatment and Labor Act (EMTALA), to force Idaho, which has essentially outlawed abortion, to permit it in some situations.

You’re no longer living in your own Private Idaho

The reason DOJ filed the lawsuit is because Idaho’s Republican supermajority legislature passed one of the most reprehensible anti-abortion bills out there. It’s bad enough when a bunch of legislators decide their own political futures matter more than the rights of pregnant people to make their own decisions. But Idaho went further. More on that in a minute.

Here’s the point about the importance of voting: legislatures are running amuck on the conservative Kool-Aid. They’re passing laws that make it difficult, if not impossible, for the people they supposedly represent to live their lives. Anti-abortion laws. Anti-trans laws. Laws that go to the core of our rights and make it more difficult for us to vote. These bad laws underscore how critical it is for us be educated voters. In every election, at every level, we need information about who we’re putting in office.

While it can take some time to dig for accurate information, we can organize locally to do it. And we have to. Recently, Alabama Democrats learned that the gubernatorial candidate they had selected was promoting her anti-abortion views. We don’t live in a time when we can afford mistakes like this. This reinforces what we already know, election matter. And as DOJ’s Idaho litigation shows us, statehouse races are going to be among the most important, particularly as the Supreme Court makes it easier for state legislatures to pass laws that diminish rights, in favor of a conservative agenda.

What does Idaho’s law do that’s so awful? Here’s the bottom line: Idaho has made it a crime to perform an abortion. Other states have done that too. But in Idaho, the exception we see in some of them that permits abortion in cases where necessary to protect a pregnant person’s life isn’t an exception. Instead, after a doctor is indicted and is being prosecuted for performing an abortion, it’s a defense the doctor can raise to the criminal charges brought against them.  

In Idaho, doctors will who perform medically necessary abortions, including ones following an incomplete miscarriage or severe preeclampsia to prevent the patient from becoming dangerously ill and possibly dying, can be arrested, and charged, even though the medical procedure was necessary. Doctors can become defendants in criminal cases if they treat a patient whose pregnancy complications could lead to septic infection or hemorrhage. They face 2 to 5 years, while nurses and staff who support procedures risk losing their licenses.

We all know how that plays out. Care becomes less accessible, if not inaccessible. Women suffer, some of them die.

DOJ is fighting back with the kind of lawsuit you get when you put a civil rights lawyer in the number three spot at the Justice Department. Associate Attorney General Vanita Gupta, who leads the Justice Department’s Reproductive Rights Task Force, announced the lawsuit alongside Attorney General Merrick Garland. It seeks to prevent Idaho’s law from going into effect later this month, and ultimately, to permanently bar as much of it as possible from becoming law.

DOJ’s legal theory hinges on the Supremacy Clause of the Constitution, which says that federal laws made pursuant to the Constitution are the supreme law of the land and they trump (sorry!) any state laws that contradict them:

Article VI

“…This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

In other words, if there’s a federal law that conflicts with Idaho’s anti-abortion law, Idaho’s provision is unconstitutional because it violates the Supremacy Clause. But how do you get there when the Supreme Court, in Dobbs, said there was no Constitutional right to an abortion and the states were free to pass restrictions?

DOJ’s lawsuit, which you can find here, explains that under the federal EMTALA law, emergency rooms at hospitals that accept Medicare funds are required to provide medical treatment necessary to stabilize a pregnant patient with an “emergency medical condition.” DOJ argues that includes not just risks to life, but also: “those that place a patient’s ‘health” in ‘serious jeopardy” or risk ‘serious impairment to bodily functions’ or ‘serious dysfunction of any bodily organ or part.”

That seems like common sense. Isn’t that the kind of medical care we would all want to receive if we were seriously ill? But in Idaho and other states, after Roe was reversed, too many legislatures have substituted their judgments for those doctors and patients should be making. DOJ’s lawsuit asks the court to prohibit Idaho (and only Idaho in this case, although the precedent if DOJ wins could be helpful in other states) from violating EMTALA.

It's a simple, elegant legal theory, albeit one that hasn’t been used in this precise context before. We used a similar theory to successfully challenge Alabama’s anti-immigration law during the Obama administration. The district judge in this case, B. Lynn Winmill, is a Clinton* appointee. After he rules, the case will head to the 9th Circuit Court of Appeals and then, presumably, to the U.S. Supreme Court.

You may recall the hullabaloo around the Texas abortion case last year, and other controversial cases, when the Court decided them on its “shadow docket.” The shadow docket permits the Court to decide cases like this one that ask it to keep a law from going into effect (an “injunction”) in short order, without full briefing and argument. In some ways, this docket is a convenient procedural device for handling certain types of situations, but it has become far more controversial in recent years as the Court has greatly expanded the number of cases it resolves this way. Shadow docket decisions are problematic, because they often offer little or no guidance to explain why the Court ruled the way it did and how the lower courts should apply the ruling. This new case means it’s likely we’ll be talking about the shadow docket again in the weeks ahead.

One final note. After hatching a bumper crop of adorable baby chicks and enjoying their first couple of weeks, most of them have gone off to live the good life with a local farmer. We kept five (six really, one more egg that we’d given up on hatched after he left) and are really enjoying them. One, who was born on my birthday, has already been given the name Birthday Girl; but the rest still need names and I’m going to need your help with that! So start thinking about that and as soon as I can get the chicks to hold still, I’ll share pictures.

Lots more important developments coming as we head into this critical juncture ahead of the midterm elections.

We’re in this together,

Joyce

*I incorrectly identified Judge Winmill as a Carter appointee in the original version, but he is a Clinton appointee. I’ve corrected that here.