Advance Notice: Briefs

Michigan joins other states in challenging Idaho’s near-total abortion ban

By: - September 18, 2023 3:24 pm

Protesters gather in Lansing for a June 24, 2022 rally against the Supreme Court’s decision to overturn Roe v. Wade. | Photo by Andrew Roth

Michigan Attorney General Dana Nessel has added her name to a document from 23 other attorneys general who are supporting the Biden’s administration’s legal challenge on Idaho’s laws that essentially ban all abortions.

Nessel joined the attorneys general last week in an amicus brief supporting the U.S. Department of Justice’s case against Idaho that the ban violates federal laws that require pregnant people receive emergency medical care when needed, including abortions.

Attorney General Dana Nessel on Feb. 15, 2023 (Andrew Roth/Michigan Advance)

It’s not left up to states to determine what emergency medical care patients can receive; it’s up to Emergency Medical Treatment and Labor Act (EMTALA), Nessel said in a media release Monday.

“This federal legislation has long been interpreted to cover emergency medical conditions involving or affecting pregnancy for which necessary stabilizing treatment may include abortion,” Nessel said. “I stand with my colleagues in supporting the Biden Administration’s assertion that Idaho’s abortion ban must yield when pregnant women are in need of emergency abortion services.” 

Currently, Idaho has a ban on abortion for anyone, except for those who are victims of rape or incest who are 12 or less weeks pregnant and have filed a police report documenting the assault. The ban, one of the strictest in the country, came after the U.S. Supreme Court overturned Roe v. Wade in June 2022.

The Biden administration was able to get a portion of the ban blocked by a federal judge in August 2022, with U.S. Attorney General Merrick B. Garland saying at the time that the decision would help women get the emergency medical care they need, which includes abortions.

Now Idaho is appealing the judge’s decision, and Nessel and other attorneys general are providing support to the case to deny the appeal. They argue this isn’t just an Idaho problem; it could impact other states’ residents.

The amicus brief argues the ban creates a profound burden on other states to pick up the slack of providing care to those who have to flee their states where abortion is banned. States like Michigan have already seen jumps in out of state patients seeking abortions.

Additionally, forcing pregnant patients to travel and go through the stress of navigating health care plans in another state falls short of federal requirements for providing care, according to the brief. Delays in providing an emergency abortion can put a patient’s life at risk.


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Anna Liz Nichols
Anna Liz Nichols

Anna Liz Nichols covers government and statewide issues, including criminal justice, environmental issues, education and domestic and sexual violence. Anna is a former state government reporter for The Associated Press and most recently was a reporter for the Detroit News. Anna is a graduate of Michigan State University.