President Joe Biden is signing an executive order directing the Health and Human Services secretary to help women access abortion services across state lines through Medicaid. The White House said the order is in line with what the Biden administration calls a “bedrock right” to travel across state lines to get an abortion.
It’s the administration’s latest move to protect or expand abortion access and comes a day after the Justice Department sued Idaho, claiming the state is breaking federal law by not providing abortions to women experiencing a medical emergency.
Attorney General Merrick Garland said that under the Emergency Medical Treatment and Labor Act, doctors and hospitals are required to perform an abortion if they determine it will stabilize the patient in an emergency. That applies even in states where abortion is illegal.
Garland said the Idaho law would subject doctors to arrest and criminal prosecution even if they perform an abortion to save a woman’s life. Doctors would then have the burden of proving they are not criminally liable.
“Although the Idaho law provides an exception to prevent the death of a pregnant woman, it includes no exception for cases in which the abortion is necessary to prevent serious jeopardy to the woman’s health,” Garland said. “In the days since the Dobbs decision, there have been widespread reports of delays and denials of treatment to pregnant women experiencing medical emergencies.”
Idaho’s Attorney General Lawrence Wasden called the suit politically motivated.
“Since the Dobbs decision from the U.S. Supreme Court in June, the Department has had nearly six weeks to discuss with Idaho its abortion laws and their reconciliation with EMTALA,” Wasden said in a statement.
The big question is whether federal law supersedes state law when it comes to emergency abortion procedures. The Justice Department argued it does, and the Centers for Medicare and Medicaid Services put out official guidance explaining how. They said the Inspector General for Health and Human Services can impose a $119,942 fine for violations.
Wasden pointed to U.S. Code 1395dd(f) that states, “The provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.”
Wasden said he hoped the Justice Department would have worked with Idaho to “reconcile” the law, rather than file a lawsuit.
The Justice Department is seeking an injunction and a judgment that Idaho’s law violates the Constitution’s supremacy clause.