BOISE, Idaho — Lawyers representing Idaho and the state Legislature stood before a panel of 11 federal judges this week to defend the state’s abortion restrictions as part of a case that went before the U.S. Supreme Court earlier this year.

The U.S. Department of Justice sued Idaho in August 2022, shortly after the Supreme Court overturned Roe v. Wade and triggered Idaho’s strict abortion bans. The federal government said Idaho’s narrow exception for abortion only to prevent the death, not protect the health, of a pregnant patient didn’t meet the standards of the Emergency Medical Treatment and Labor Act, or EMTALA. The panel of federal judges Tuesday interrogated attorneys for the state and federal government in an hourlong oral argument hearing.

But one question loomed over the entire proceeding: When Donald Trump takes office in January, will the federal government even continue to pursue the case?

In the last two years, the lawsuit has been a roller coaster of injunctions, appeals and reversals that took it to the nation’s highest court in April. This summer, the Supreme Court justices sent the case back to the 9th Circuit Court of Appeals, reinstated a preliminary injunction allowing abortions as emergency care and chastised both parties, whose arguments in D.C., the justices said, “rendered the scope of the dispute unclear, at best.”

Now the next steps for the case are also unclear. The appeals court could uphold or undo the injunction, which allowed Idaho physicians to provide abortions as stabilizing care in non-life-threatening emergencies without opening themselves up to potential prosecution.

If the incoming presidential administration instructs the Department of Justice to drop the case entirely, either decision would be moot.

It’s common for a new administration to dismiss pending cases that don’t align with its priorities. For instance, Democratic President Joe Biden’s administration dropped several cases initiated during Trump’s first term, including a lawsuit against former Trump national security adviser John Bolton over Bolton’s tell-all book; a lawsuit against a former aide to Melania Trump who officials said violated a non-disclosure agreement by writing a memoir; and a lawsuit against Yale University that alleged the school discriminated against white and Asian applications.

Throughout his 2024 campaign, Trump was inconsistent in his stance on abortion rights, at times criticizing conservative states for harsh laws while simultaneously voicing support for a federal ban on abortion around 15 weeks of pregnancy.

Dan Estes, a spokesperson for the Idaho Attorney General’s Office, told the Idaho Statesman in an email that it has not heard anything from the Trump transition team on its plans to pursue the case. Trump transition officials did not respond to an emailed request for comment on the case.

Idaho’s attorney argues EMTALA, abortion ban don’t conflict

John Bursch, the attorney arguing on behalf of the state of Idaho, on Tuesday reiterated arguments the state made before the Supreme Court in D.C. this spring: that the federal government cannot overstep state law and cannot instruct hospitals to perform a specific procedure like abortion under EMTALA.

EMTALA, a federal law dating back to the 1980s, requires hospitals that accept Medicare funds to provide stabilizing care to patients experiencing medical emergencies.

Bursch is senior counsel with the Alliance Defending Freedom, a conservative Christian legal advocacy group that has been described by some organizations, like the civil rights nonprofit Southern Poverty Law Center, as an extremist group. Idaho Attorney General Raúl Labrador tapped the Alliance Defending Freedom for help in the case last year.

Bursch opened arguments in front of a panel that includes judges appointed by former presidents Bill Clinton, George W. Bush and Barack Obama. Four of the judges were appointed by Trump in his first term, and two are Biden appointees.

Bursch told the judges Idaho is being irreparably harmed each day the injunction is in place and argued that EMTALA does not conflict with Idaho’s Defense of Life Act, which includes an emergency exception only when abortion is “necessary to prevent the death of the pregnant woman” and carries the threat of prison time and loss of medical license for any health care professional who breaks the law.

“What’s the problem with having an injunction if you’re not being harmed by the non-conflict, from your perspective?” asked Judge Milan D. Smith, Jr., a Bush appointee from El Segundo, California.

Bursch said the injunction, originally put in place by Judge B. Lynn Winmill of the U.S. District Court for Idaho, is broader than EMTALA’s allowances. He also said the U.S. Department of Justice has failed to illustrate “real-world” instances like a scenario poised by Smith, where Idaho law would bar a physician from providing an abortion to a patient if it would prevent them from losing a limb when their life wasn’t also at risk.

‘An exercise in futility’: Judges weigh in on future of case under Trump

As Bursch defended Idaho’s position, Judge Consuelo M. Callahan, a Bush appointee from Sacramento, first raised the issue of the incoming administration.

“Is this an exercise in futility?” Callahan asked. “You said every day that Idaho can’t have its law in effect is a terrible day, but none of the things that anyone’s talked about have happened.

“A lot of things have changed on the ground, and we have a new administration,” Callahan said. “Why shouldn’t we just send this back to the District Court and let the District Court deal with all the changes?”

Callahan was referring to changes to Idaho’s abortion law that occurred after the Department of Justice sued the state. The Idaho Legislature amended the law to allow abortions in cases of ectopic or molar pregnancies and to create an explicit exception for abortion to save a pregnant patient’s life.

Taylor Meehan, a Chicago-based attorney representing the Idaho Legislature, argued before the panel after Bursch. Meehan faced similar questions from the judges as she argued that Idaho doctors are able to use their “good faith medical judgment” to decide when an abortion is legal.

“But if they guess wrong, the prosecutor prosecutes them and they lose their license,” Smith countered.

Judge Salvador Mendoza, Jr., a Biden appointee from eastern Washington, asked Meehan if the abortion law had been altered to spell out specific conditions when doctors could legally provide abortions.

“The more you put in the statute, the more you start to limit the physicians’ good faith belief,” Meehan said.

“How are the doctors supposed to know this if it’s not explicit?” Mendoza asked.

Catherine Carroll, who argued on behalf of the Justice Department, also faced criticism from the panel as she reiterated the federal government’s position that abortion is sometimes the appropriate stabilizing care for emergencies that aren’t life-threatening.

Trump appointees Daniel Bress, of San Francisco; Lawrence VanDyke, of Reno; and Danielle Forrest, of Portland, questioned the necessity of abortion, whether it falls under the scope of EMTALA and who should have the power to decide when and if ethics come into providing abortions as health care.

VanDyke also took the lead questioning Lindsay Harrison, who argued on behalf of St. Luke’s Health System, which has been a vocal supporter of the federal government’s position in the case. When Harrison noted that St. Luke’s airlifted six patients to other states during the six-month period when the U.S. Supreme Court walked back the injunction in the case, VanDyke questioned the motivation for relocating the patients.

“How much of this airlifting is because (the patient needs) something you don’t provide?” VanDyke asked.

Harrison responded that the patients, most of whom had a condition that causes the amniotic sac to break prematurely and risk infection, were airlifted only because St. Luke’s was unable to comply with EMTALA. She said physicians moved patients to hospitals where they had access to “the full range of stabilizing care.”

Forrest asked Harrison where St. Luke’s will stand if the Trump administration drops the federal case against Idaho.

Harrison said the health system, which is Idaho’s largest, would either face the same circumstances as it did when it needed to airlift patients, or it could file its own lawsuit.

“That’s a troubling scenario in front of us,” Harrison said.

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