Tennessee AG Herbert Slatery joins lawsuit defending Idaho no-exceptions abortion ban

By: - August 26, 2022 7:00 am
Dr. Amy Gordon Bono speaking at a Aug. 24 press conference about Tennessee's abortion ban. (Photo: John Partipilo)

Dr. Amy Gordon Bono speaking at a Aug. 24 press conference about Tennessee’s abortion ban. (Photo: John Partipilo)

Herbert Slatery III joined 16 other states’ attorneys general in defending Idaho’s abortion ban against a lawsuit brought by the U.S. Justice Department, which claimed the measure violates federal rules that require hospitals receiving Medicare funding to provide lifesaving care, including abortions.

Idaho’s law is similar to Tennessee’s trigger ban; instead of outright exceptions for lifesaving abortions for pregnant patients, the law says that doctors may defend themselves from criminal prosecution by arguing the procedure was necessary to prevent the mother’s death.

Unlike Tennessee, Idaho’s law includes no “affirmative defense” for physicians to argue the abortion was performed to prevent bodily injury— such as organ damage – to the pregnant patient. Both states’ abortion bans took effect Thursday.

On Wednesday, a federal judge temporarily blocked only the portion of Idaho’s law that makes it a crime to perform an emergency abortion to prevent bodily injury to the pregnant patient.

In June, the Biden Administration issued a memo that stressed the law, known as the Emergency Medical Treatment and Active Labor Act (EMTALA), applies to abortion in emergency situations and superseded any state law:

“If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment,” the guidance said.

Women protesting Tennessee's new abortion ban on Aug. 25, 2022 -- the day the law took effect. (Photo: Ray Di Pietro)
Women protesting Tennessee’s new abortion ban on Aug. 25, 2022 — the day the law took effect. (Photo: Ray Di Pietro)

“When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted,” the memo said.

In the amicus brief Slatery signed onto last week in the Idaho case, states disputed that the federal government can use its Medicare contracting authority with hospitals to override state law.

Citing the U.S. Supreme Court decision in June that concluded it is up to individual states to set abortion policy, the states argued the federal government’s attempts to intervene in Idaho would “directly subvert state law on a matter reserved to the States.”

“For there can be little doubt that, following Dobb v. Jackson Women’s Health Organization, regulation of abortion constitutes a core state police power,” the brief, filed last week, argued.

The Lookouot reported previously Slatery had not taken any public position on the federal law, based on a response to questions posed to his office Wednesday.

A spokeswoman clarified on Thursday that Slatery had participated in the Idaho lawsuit. Slatery has not taken any public position on how, or whether, he believes the Biden Administration guidance on EMTALA should apply to emergency abortion care in Tennessee hospitals.


Amici brief filed in defense of Idaho’s abortion ban by Anita Wadhwani on Scribd


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Anita Wadhwani
Anita Wadhwani

Anita Wadhwani is a senior reporter for the Tennessee Lookout. The Tennessee AP Broadcasters and Media (TAPME) named her Journalist of the Year in 2019 as well as giving her the Malcolm Law Award for Investigative Journalism. Wadhwani is formerly an investigative reporter with The Tennessean who focused on the impact of public policies on the people and places across Tennessee. She is a graduate of Columbia University in New York and the University of California at Berkeley School of Journalism. Wadhwani lives in Nashville with her partner and two children.