The Department of Justice (DOJ) sued Idaho earlier this month claiming that the law was in violation of the federal Emergency Medical Treatment and Labor Act (EMTALA). U.S. District Judge B. Lynn Winmill ruled on Wednesday that the state cannot prosecute anyone who commits an abortion in the event of a medical emergency and that decision will remain in place until the case is resolved.
The Idaho law makes it a felony to commit an abortion on a preborn human being in a “clinically diagnosable pregnancy.” Anyone who does so could receive up to five years in prison, but in certain situations, the doctor who committed the abortion would be able to defend himself or herself in court. Those situations are: if the doctor deemed the abortion necessary to save the woman’s life, if the woman was raped and reported the rape or act of incest to law enforcement and provided a copy of that report to the abortionist, and if a minor was raped and her parent or guardian reported the rape or act of incest and provided the doctor with that report.
Idaho defines abortion as “the use of any means to intentionally terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child.” (emphasis added) The problem is that while induced abortion (intentional killing) is not medically necessary, numerous life-saving procedures for a pregnant woman may result in the death of the preborn baby.
Because of this, Idaho’s definition of abortion is unclear.
For example, preterm delivery (including an emergency C-section) to treat preeclampsia may result in the child’s death if the child is delivered before she is strong or old enough to survive outside the womb. If the doctor does not intentionally kill the child, but the child dies as a result of the preterm delivery, then this should not be considered an induced abortion. However, in such a case, the doctor would still have “reasonable likelihood” to believe the baby is not likely to survive and therefore, it could be considered an abortion in Idaho.
Likewise, treatment for an ectopic pregnancy would cause the preborn child to die, but it is not (and should not) be considered an abortion. Without the surgery, the woman is at risk of death, which would cause her baby to die as well.
In July, the Department of Health and Human Services said that every hospital must carry out life-saving procedures on pregnant women. “If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment,” the agency’s guidance states. “When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”
It is always important to save the lives of pregnant women who are facing a medical emergency, but it is never necessary to commit an induced abortion — in other words, to intentionally kill the preborn child — in order to save the mother. Killing the preborn child prior to preterm delivery is not a stabilizing treatment for the mother; ending the pregnancy is. The pregnancy can be ended through preterm delivery without intentionally killing the baby. Emergency preterm deliveries are not abortions even if it is strongly believed that the child will not survive.
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