Does federal law protect abortions in medical emergencies? The Biden Administration will find out in court
in the absence of federal legislation, so what the courts in decide in Texas and Idaho could enhance or severely curtail the executive branch’s ability to weigh in on the issue in restrictive states.
When it comes to pregnancy, “we’re talking about things like ectopic pregnancy, and incomplete miscarriages where there’s a risk of hemorrhage, and preeclampsia and HELLP syndrome,” says Lindsay Wiley, a law professor and director of the Health Law and Policy Program at UCLA Law. “We’re not talking about a run of the mill elective abortion situation.”
Idaho’s trigger ban, for example, which is set to go into effect Aug. 25, has exceptions for the risk of death to the pregnant person or when the pregnant person has reported rape or incest to law enforcement. But those exceptions can only be used as a defense in a criminal trial after someone has charged the doctor with violating the law—there’s no judgment doctors can make beforehand that will indemnify them if they provide the procedure.
Texas is mainly saying that the Biden Administration’s guidance would unlawfully force doctors in the state to provide abortions in situations that would leave them exposed to criminal penalties under the state’s laws. Texas last year enacted a ban on abortions after about six weeks that is enforced by private civil lawsuits, and its trigger ban outlawing nearly all abortions and adding criminal penalties is set to go into effect Aug. 25.
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