Labrador Letter: Defending Idaho’s Right to Protect the Unborn

Dear Friends,

In this edition of the Labrador Letter, I want to bring your attention to our emergency application submitted to the Supreme Court of the United States. Our office, in collaboration with Alliance Defending Freedom and the law firm Cooper & Kirk PLLC, filed this application to protect Idaho’s right to regulate abortion following the reversal of Roe v. Wade.

In 1973, the Supreme Court, in Roe v. Wade, asserted that the U.S. Constitution guaranteed a broad right to abortion. This decision invalidated state abortion laws across the country, essentially shifting policy control from state legislatures to the federal judiciary. From the beginning, Roe v. Wade sparked controversy, with many, including myself, viewing it as an instance of judicial activism surpassing the Supreme Court’s constitutional authority. In 2022, the U.S. Supreme Court, aligning with my interpretation, overturned Roe v. Wade, returning the authority over abortion to the states.

Some states, like Vermont, California, Michigan, and Ohio, have used ballot measures to determine abortion’s legality. Meanwhile, other states, like Idaho, have passed abortion measures through their democratically elected legislatures.

In response to Roe v. Wade’s reversal, our democratically elected legislature and governor enacted the Defense of Life Act, limiting abortion except in cases where the mother’s life is endangered.

Unhappy with Roe’s reversal, the Biden Administration’s Department of Justice challenged Idaho’s right to self-governance. The DOJ sued Idaho, arguing that the Defense of Life Act conflicted with an obscure federal Medicare statute, the Emergency Medical Treatment and Labor Act (EMTALA). EMTALA was originally written to ensure the indigent patients would still be given medical treatment at emergency rooms at those hospitals that accepted federal Medicaid money. The Department of Justice contends that EMTALA preempts Idaho law and mandates abortion as a required medical treatment in certain circumstances.

The Defense of Life Act has been challenged before the Idaho District Court, a panel of the Ninth Circuit, and the full Ninth Circuit. Although the Ninth Circuit panel allowed Idaho’s abortion law to take effect, the full court temporarily blocked our law while we continue to defend the law on appeal.

To safeguard Idaho’s right to enforce its laws, our office has petitioned the U.S. Supreme Court to stay the Ninth Circuit’s unlawful injunction so that Idaho law remains in effect while the appeal proceeds. We have also invited the Supreme Court to bypass the Ninth Circuit and rule on the case in its entirety. While the Supreme Court receives thousands of applications yearly, I hope, given the significance of this issue, that it will consider our case.

It’s crucial to emphasize that this case implicates not only Idaho’s right to protect the unborn but also its broader right to state sovereignty. Our founders did not envision a federal government with unchecked power; instead, they explicitly guaranteed state sovereignty in the Tenth Amendment of the Constitution. If we allow the federal government to use an unrelated federal statute in this manner, then nothing will prevent future administrations from using unrelated statutes to override any manner of Idaho laws and policies. That is a risk my office is unwilling to take. As your Attorney General, I am committed to staunchly defending Idaho’s right to self-governance on all matters.