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Associate Attorney General Vanita Gupta Delivers Remarks to Announce Action to Protect Reproductive Rights


Washington, DC
United States

Remarks as Delivered

Thank you, Attorney General Garland.

The complaint alleges that Idaho’s law is contrary to EMTALA because it presumptively criminalizes all abortions, making it a felony for doctors to provide emergency treatment required by federal law, even where a denial of care will likely result in the death of the pregnant patient. The Idaho law flatly prohibits abortion even where medically necessary to protect the health of the patient, such as where women are experiencing incomplete miscarriage or severe preeclampsia.

Specifically, Idaho’s law, which takes effect on August 25, places the burden on physicians to prove — at trial, following arrest and indictment — that they are not criminally liable. Physicians can only do so by proving that the abortion they performed was necessary for one of two reasons: to prevent the death of a pregnant woman, or in response to a case of rape or incest that was previously reported to the police or, in the case of a minor, to Child Protective Services. Physicians who do not meet this burden face two to five years’ imprisonment and revocation of their medical license. And the law provides no defense whatsoever for when the health of the pregnant patient is at issue.

Moreover, under the Idaho law, healthcare professionals such as nurses and lab techs face license suspension and, potentially, revocation for even assisting with abortions.

The law thus places medical professionals in an impossible situation: they must either withhold stabilizing treatment required by EMTALA or risk felony prosecution and license revocation. In so doing, the law will chill providers’ willingness to perform abortions in emergency situations and will hurt patients by blocking access to medically necessary healthcare.

The United States therefore seeks a declaratory judgment that Idaho’s law violates the Supremacy Clause of the United States Constitution and is preempted by federal law where it conflicts with EMTALA. The United States also seeks a declaratory judgment that Idaho may not punish medical providers based on their performing an abortion authorized by federal law. And we seek an injunction prohibiting Idaho’s enforcement of this law to the extent that it conflicts and prevents physicians from providing the emergency treatment that federal law requires.

In the wake of Dobbs, the Justice Department established the Reproductive Rights Task Force to formalize our ongoing work to protect reproductive freedom.

One critical focus of the Task Force has been assessing the fast-changing landscape of state laws and evaluating potential responses to infringements on federal protections. Today’s lawsuit against the State of Idaho for its near-absolute abortion ban is the first public example of this work in action.

The Task Force’s other work includes advising agencies on legal issues that have arisen post-Dobbs; coordinating technical assistance both to Congress and to States on Federal constitutional questions; and meeting with members of a broad array of stakeholder groups — including state Attorneys Generals’ offices, members of litigating, reproductive justice, and provider groups and members of the pro bono legal community on our collective efforts to protect reproductive care.

We know that these are frightening and uncertain times for pregnant women and their providers, and the Justice Department, through the work of its Task Force, is committed to doing everything we can to ensure continued lawful access to reproductive services.

And now I’d like to turn the podium back to the Attorney General, who will take some questions.

Updated August 2, 2022