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Posts published in “Day: August 24, 2022”

The abortion law, stayed in part

readings

This is the introduction to U.S District Judge B. Lynn Winmill's decision and order in the case filed against the state of Idaho by the U.S. Department of Justice concerning the about-to-be-effective abortion law banning the procedure in the state; Winmill stayed one portion (not all) of the law in his decision on August 24.

Pregnant women in Idaho routinely arrive at emergency rooms experiencing severe complications. The patient might be spiking a fever, experiencing uterine cramping and chills, contractions, shortness of breath, or significant vaginal bleeding. The ER physician may diagnose her with, among other possibilities, traumatic placental abruption, preeclampsia, or a preterm premature rupture of the membranes. In those situations, the physician may be called upon to make complex, difficult decisions in a fast-moving, chaotic environment. She may conclude that the only way to prevent serious harm to the patient or save her life is to terminate the pregnancy—a devastating result for the doctor and the patient.

So the job is difficult enough as it is. But once Idaho Code § 18-622 goes into effect, the physician may well find herself facing the impossible task of attempting to simultaneously comply with both federal and state law. A decades-old federal law known as the Emergency Medical Treatment and Labor Act (EMTALA) requires that ER physicians at hospitals receiving Medicare funds offer stabilizing treatment to patients who arrive with emergency medical
conditions. But when the stabilizing treatment is an abortion, offering that care is a crime under Idaho Code § 18-622—which bans all abortions. If the physician provides the abortion, she faces indictment, arrest, pretrial detention, loss of her medical license, a trial on felony charges, and at least two years in prison. Yet if the physician does not perform the abortion, the pregnant patient faces grave risks to her health—such as severe sepsis requiring limb amputation, uncontrollable uterine hemorrhage requiring hysterectomy, kidney failure requiring lifelong dialysis, hypoxic brain injury, or even death. And this woman, if she lives, potentially may have to live the remainder of her life with significant disabilities and chronic medical conditions as a result of her pregnancy complication. All because Idaho law prohibited the physician from performing the abortion.

Granted, the Idaho statute offers the physician the cold comfort of a narrow affirmative defense to avoid conviction. But only if she convinces a jury that, in her good faith medical judgment, performing the abortion was “necessary to prevent the death of the pregnant woman” can she possibly avoid conviction. Even then, there is no certainty a jury will acquit. And the physician cannot enjoy the benefit of this affirmative defense if she performed the abortion merely to prevent serious harm to the patient, rather than to save her life.

Back to the pregnant patient in the emergency department. The doctor believes her EMTALA obligations require her to offer that abortion right now. But she also knows that all abortions are banned in Idaho. She thus finds herself on the horns of a dilemma. Which law should she violate?

Fortunately, the drafters of our Constitution had the wisdom to provide a clear answer in Article VI, Paragraph 2 of the Constitution—the Supremacy Clause. At its core, the Supremacy Clause says state law must yield to federal law when it’s impossible to comply with both. And that’s all this case is about. It’s not about the bygone constitutional right to an abortion. This Court is not grappling with that larger, more profound question. Rather, the Court is called upon to address a far more modest issue—whether Idaho’s criminal abortion statute conflicts with a small but important corner of federal legislation. It does.

As such, the United States has shown it will likely succeed on the merits. Given that—and for the reasons discussed in more detail below—the Court has determined it should preserve the status quo while the parties litigate this matter.

The Court will therefore grant the United States’ motion. During the pendency of this lawsuit, the State of Idaho will be enjoined from enforcing Idaho Code § 18-622 to the extent that statute conflicts with EMTALA-mandated care.
 

Critchfield and the education culture

malloy

Debbie Critchfield of Oakley, the Republican candidate for state superintendent of public instruction, isn’t running against the two-term incumbent that she defeated in May’s primary election. But she makes it clear that, if elected, it will not be business as usual in Idaho’s Department of Education.

Critchfield is telling voters – especially Republican educators who jumped ship and voted for Democratic candidates in the last three elections for state superintendent – that they can feel comfortable with the GOP candidate this time around.

State Superintendent Sherri Ybarra won two elections by the smallest of margins, with both races being declared “too close to call” the morning after the election. She was the only Republican who had any trouble winning races for the state constitutional offices.
Critchfield looks to win in a more convincing fashion against Democrat Terry Gilbert of Boise, a retired teacher.

“There were two attitudes about her,” Critchfield said of Ybarra. “People either knew nothing about her, or there were high negatives attached to her. A lot of promises were made, and nothing happened, or she took credit for what the governors or Legislature did. Legislators were frustrated. They want someone who will bring ideas to them and someone who will work with them when they have ideas.”

Critchfield had more than 30 Republican legislators endorsing her campaign in the primary and, if elected, she thinks she’ll have appeal with some Democratic lawmakers as well.

“I will have a different approach,” says Critchfield, a former president of the State Board of Education. “There will be a different culture in the department. I will work with the governor, and I will need support from all branches of government. A key part also is the working relationship with the Board of Education, which is overlooked a lot. It was extremely difficult for board members to work with (Ybarra).”

Regardless of who wins – whether it’s Critchfield or Gilbert – Idaho will have a new state superintendent leading the Department of Education. But as Critchfield says, the challenges of the job go beyond building working relationships with educators and political leaders.

“The bottom line for education in Idaho is that people are frustrated, and the frustration is not only with parents. Teachers are frustrated. Kids are frustrated and we can’t afford in any sense of the word to do business as usual,” Critchfield says. “We’ve got to bring education into the modern context. How do we make it more relevant for students who are graduating and getting jobs? How do we provide the tools for the modern classroom and our teachers? How are we interacting with our parents and communities to reflect their values? There are long-standing issues that are going to take solutions that, in some cases, we haven’t even thought of yet – everything from funding to school safety and security.”

Critchfield doesn’t pretend to have all the answers. But living in a rural community, she knows there are talented people throughout the state who are willing to work on solutions. Critchfield is the public information officer for Cassia County schools and is a former school board member for the district.

Her opponent has talked about a trigger law that would devote at least half of the state’s surplus to education and is backing the Quality Education Act promoted by Reclaim Idaho. Critchfield rejects both ideas.

On the issue of the state surplus, Critchfield says, “to say that half should go to education … I don’t know what that number is. One of the issues we’ve had over time is that we don’t target where that money is going. We can’t just say that education needs more money. For what? And where? We have been putting millions of more dollars into education, yet people are still frustrated with the outcome.”

On the education initiative, she said, “I don’t believe we should have a massive tax hike with the kind of surplus we have and people dealing with inflation. That’s not the solution.”

Those are topics that can, and should be, kicked around in debates. And Critchfield, to her credit, plans to discuss these issues with Gilbert in televised debates. She says she’s also anxious to hear how Gilbert “stands up” for policies imposed by the Biden administration.

Yes, debates do serve a valuable purpose.

ctmalloy@outlook. Chuck Malloy is a long-time Idaho journalist and columnist. He may be reached at ctmalloy@outlook.com