Justice Department Files First Lawsuit Against Abortion Ban After Roe v. Wade Overturned

Idaho's near-total ban on abortion is scheduled to go into effect later this month.

Corinne Reichert Senior Editor
Corinne Reichert (she/her) grew up in Sydney, Australia and moved to California in 2019. She holds degrees in law and communications, and currently writes news, analysis and features for CNET across the topics of electric vehicles, broadband networks, mobile devices, big tech, artificial intelligence, home technology and entertainment. In her spare time, she watches soccer games and F1 races, and goes to Disneyland as often as possible.
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Corinne Reichert
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Protest sign reading "Abortion is healthcare"

Abortion rights advocates argue that abortion is a form of health care.


The Department of Justice filed a lawsuit in Idaho on Tuesday in an attempt to protect the rights of pregnant people to access emergency medical care. The DOJ complaint alleges that Idaho's incoming near-total abortion ban, which will go into effect on Aug. 25, conflicts with federal law under the Emergency Medical Treatment and Labor Act.

Under EMTALA, hospitals that receive federal funding from Medicare are required to provide necessary stabilizing treatments to patients in medical emergencies. The DOJ cited incidents in which an abortion is necessary for stabilizing an emergency medical situation.

Under Idaho Code section 18-622, abortions may be allowed to prevent the death of a pregnant patient, or in the case of rape or incest, but not to protect the health of that patient. Doctors who perform an abortion could be imprisoned for between two and five years. 

"Women should not have to be near death to get care," said Department of Health and Human Services Secretary Xavier Becerra in a statement Tuesday. "Patients have the right to stabilizing hospital emergency room care no matter where they live."

In June, the Supreme Court overturned its 1973 Roe v. Wade ruling, ending the constitutional right to an abortion nationwide and instead leaving it up to the states to decide on laws to govern this aspect of health care. In the court's conservative majority opinion in Dobbs v. Jackson Women's Health, issued on June 24, Justice Samuel Alito wrote that it was time to "return the issue of abortion to the people's elected representatives."

The Justice Department has said it disagrees with the Supreme Court's decision. Its Reproductive Rights Task Force said it will continue looking at state abortion bans to ensure they comply with EMTALA.

"On the day Roe and Casey [Planned Parenthood v. Casey, a 1992 abortion-related decision] were overturned, we promised that the Justice Department would work tirelessly to protect and advance reproductive freedom," said Attorney General Merrick B. Garland on Tuesday. "We will use every tool at our disposal to ensure that pregnant women get the emergency medical treatment to which they are entitled under federal law."

The information contained in this article is for educational and informational purposes only and is not intended as health or medical advice. Always consult a physician or other qualified health provider regarding any questions you may have about a medical condition or health objectives.