Idaho prepares to defend its abortion ban

The State of Idaho, fresh from a temporary victory in the U.S. Supreme Court, is heading back to that court. This time the State, or rather Rep. Mike Moyle (R-10A), Speaker of the Idaho House, will defend Idaho’s anti-abortion “trigger law.” That law was supposed to take effect thirty days after a decision vacating Roe v. Wade. But after that decision came down, the federal government rushed to sue Idaho to stop its ban from taking effect. The government sued under a law that shouldn’t even be related: the law mandating that patients in dire medical emergencies, presenting to Medicare-funded hospitals, at least get stabilizing treatment. But the real story is that a certain senior judge in Idaho is pursuing a single-handed enforcement of “woke medicine.” That judge signed a preliminary injunction that now has the State before the Supreme Court.

Idaho goes to the Supreme Court

The Idaho law at issue is the Defense of Life Act, or Idaho Code Section 18-622 (“Section 622” for short). That law, as currently amended, prohibits abortions, except:

• As necessary to prevent the death of the mother, or
• In any case of rape or incest.

Idaho enacted this law as Thomas Dobbs, Mississippi Director of Health, was pressing his own case before the Supreme Court. On June 26, the Court decided that no judicial mandate should exist for abortion in the United States. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).

The Biden administration, determined to see no abortion unperformed, jumped on the Idaho statute immediately. They sued the State in the U.S. District Court for the District of Idaho. U.S. v. Idaho, 1:22-cv-00329, Barry Lynn Winmill presiding. The government alleged that Section 622 conflicted directly with the Federal Emergency Medical Treatment And Labor Act (EMTALA).

EMTALA provides that any hospital accepting Medicare funds must “stabilize” any patient presenting with an emergency condition. Congress sought to address the once-common practice of hospitals “dumping” indigent emergency patients on the charity hospitals of the cities in which they operated. The CBS television program Sixty Minutes highlighted the practice.

Oh, boy! Sending a compound tib-fib fracture fifteen miles in an ambulance just because [the patient] can’t pay, is such bulls**t. Actual protest by a hospital telephone operator upon receiving just such a transfer request

But the government, in its complaint, alleged worse: that Idaho’s law would see women die in the emergency room.

Details

According to the complaint, a woman might present to emergency with a severe complication for which only abortion might serve. The complaint listed three possibilities: ectopic pregnancy, severe toxemia of pregnancy (“pre-eclampsia”), or any complication threatening sepsis or hemorrhage. Then the government alleged that the Idaho law would forbid abortion under those circumstances. They further alleged that a physician performing an abortion would have to wait until trial to present an affirmative defense.

First, this law provides exceptions that can play out before a case even gets to trial. Second, only in this complaint does anyone conceive that this or any law would forbid a gynecologist to operate on a woman with an ectopic pregnancy. For the benefit of the layperson, an ectopic pregnancy occurs when a fertilized egg cannot swim into the womb, and therefore implants in the wall of the Fallopian tube or sometimes in the abdomen. The unborn child usually does not survive this – but at least one medical team made it happen last year.

Toxemia of pregnancy is a relatively rare complication involving very high blood pressure – and in the extreme case, seizures. (Toxemia with seizures is called eclampsia. Pre-eclampsia is toxemia that doesn’t progress to seizures.) Sepsis literally means infection of the blood – and hemorrhage, of course, means an uncontrolled bleed. These complications do not always require abortion, no matter what the complaint says. Importantly, EMTALA does not specify abortion anywhere in its text, as a treatment for these complications, or in any other context.

History of the case

The federal government filed their complaint on August 2, 2022. They swiftly moved for a preliminary injunction. Judge Barry Lynn Winmill granted that injunction – and cagily said this applied only to the extent that Section 622 conflicts with EMTALA.

Judge Winmill held that EMTALA preempts the Idaho law because:

1. It is impossible to comply with both, because sometimes an abortion is the appropriate stabilizing treatment, and
2. Section 622 deters physicians from providing abortions when certain emergencies require them.

The judge also accepted the government’s position that a physician must provide an affirmative defense at trial.

Idaho’s legislature filed two motions to reconsider, saying the judge read EMTALA wrong. Judge Winmill denied these motions – after waiting eight months to rule. During that time, the Idaho Supreme Court delivered an opinion that Section 622 would not forbid a doctor to cut out an ectopic pregnancy or otherwise act when the unborn child had little chance of survival. That didn’t matter to the court. Nor did it matter that the legislature made sure that exceptions, not “affirmative defense at trial,” would govern.

On July 3, 2023 the legislature appealed – to the Ninth Circuit. In September 2023, a three-judge panel stayed the injunction. But the federal government then filed for a rehearing en banc, and got it. In November, the full Ninth Circuit Court vacated the stay and restored the injunction. They also denied the Legislature’s emergency motion as moot.

Application to the Supreme Court for a stay

On November 20, Rep. Moyle applied to the Supreme Court for a stay. Then on January 5, 2024 the Supreme Court granted the stay. They also treated Mr. Moyle’s application, and another application from the State of Idaho, as petitions for review before judgment. These, the Court granted, and consolidated under Mike Moyle’s application. Moyle v. U.S., 23-726.

The State of Idaho will argue the matter on Wednesday morning (May 1). Their argument will make these points:

1. The state will suffer irreparable harm, absent a stay of Judge Winmill’s injunction.
2. Idaho is very likely to succeed on the merits, because:
   1. EMTALA cannot preempt the Defense of Life Act,
   2. EMTALA is not a federal abortion mandate – and indeed Judge Winmill misread that law,
   3. Judge Winmill also misread Section 622, and
   4. The injunction violates Amendment X and the Spending Clause (Article I Section 8 Clause 1).

Idaho will also argue that a stay is in the public interest, to protect a proper construction of EMTALA and the Constitution. In this context, Moyle’s application says Judge Winmill “misstates” the Defense of Life Act.

The lower court relied on declarations prepared within a three-week period that have never been tested at trial, to portray section 622 as a brutal threat to Idaho women.

Who is Judge Winmill?

The real question to ask, to analyze this matter properly, is: who is Judge Barry Lynn Winmill? He is a senior judge of the District of Idaho, and received his appointment from Bill Clinton. Even that does not tell half the story. His jurisprudence is as “woke” as that of, say, the Liberal Bloc of the Supreme Court.

His “noteworthy cases” include sentencing a business owner to seventeen years for sending a worker in to clean an empty toxic-liquid tank without proper Personal Protective Equipment. That’s the longest sentence ever for an “environmental crime.” In another case, he ordered the U.S. Fish and Wildlife Service to put the sage-grouse on the Endangered Species List. And in a case involving an Idaho inmate, he ordered the State to “transition” said inmate from male to female. (That decision prompted a petition to have him removed from the bench.)

More to the point, this same judge handed down another injunction against Idaho’s Vulnerable Child Protection Act. Worse, that injunction was truly universal in scope. The Supreme Court just struck that down, 6-3.

Obviously Barry Lynn Winmill will see no person untransitioned. He now would appear to want no abortion unperformed. Idaho is in fact surrounded on all sides by abortion tourist trap States, according to this interactive map. But that’s not good enough for the Biden administration, nor, apparently, for Judge Barry Lynn Winmill.

What next?

The Supreme Court is likely to vote 6-3 in favor of Idaho in this matter – and could vote 9-0 with concurrences from the Liberal Bloc. For the Court to rule in the government’s favor is nearly inconceivable. After all, the Court granted the stay, which it didn’t have to do. But the Court also knows that it cannot escape abortion jurisprudence entirely.

Furthermore, if ever any judge rated removal from the bench on impeachment for, and conviction of, wasting the Supreme Court’s time with unconstitutional rulings, Judge Barry Lynn Winmill has that dubious qualification. Sadly, the Senate has never removed a judge for other than such gross impropriety as accepting a bribe. Even if the Senate recognized ideological corruption as a high-enough judicial “crime or misdemeanor,” the Senate as presently constituted suffers from the same kind of ideological corruption at present. The more reason, then, to reconstitute the Senate at every opportunity – meaning during federal elections.