Justice Department sues Idaho over abortion ban in first post-Roe litigation

WASHINGTON — The Department of Justice filed a lawsuit Tuesday arguing that Idaho's near-total abortion ban violates federal law, the Biden administration’s first litigation to protect abortion access since the Supreme Court overturned the 1973 Roe v. Wade decision in late June.

In announcing the lawsuit, Attorney General Merrick Garland said Idaho’s ban violates federal law requiring medical providers offer emergency medical treatment.

Garland announced the legal action from the Department of Justice along with Associate Attorney General Vanita Gupta, who leads its reproductive rights task force.

The legal action comes several weeks after Garland said the department would be advising federal agencies on their authorities when it comes to protecting access to abortions, bringing litigation and entering into lawsuits on the side of private parties with amicus briefs and statements of interest.

"The Justice Department is going to use every tool we have to ensure reproductive freedom," he told reporters and added that it would file a motion to dismiss a Texas lawsuit challenging guidance from the Department of Health and Human Services requiring medical providers offer abortions in emergency situations.

The federal law on which the guidance is based "requires hospitals to provide stabilizing care for a patient who comes in with a medical emergency that seriously jeopardizes their life or their health," he said. "And where that stabilizing treatment is abortion, they must provide the abortion. They must do so notwithstanding a state law that is so narrow that it doesn't even protect a woman's life or health."

On Friday, Garland, Gupta and other DOJ officials convened a meeting of private law firms, law professors, bar associations and public interest groups at the White House to discuss legal representation for patients, providers and third parties lawfully seeking or offering reproductive health care services throughout the country.

The department is "working relentlessly to protect access to reproductive services" in recognition of "the crisis that it is," Garland said.

"It will take all of us — government lawyers, private pro bono attorneys, bar associations, public interest organizations — to do all we can to protect access to reproductive health care and to provide vigorous legal representation of patients, providers and third parties in need," he said.

Meanwhile, voters in Kansas will decide Tuesday on a constitutional amendment that will determine the future of abortion rights in their state — the first time anywhere in the U.S. that voters will cast ballots on abortion since the Supreme Court reversed Roe.

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