Idaho Legislature’s attorneys file appeal over right to intervene in federal abortion case

Attorneys hired to represent the Idaho Legislature in a federal case over Idaho’s abortion ban have appealed their right to intervene in the case to the Ninth Circuit Court of Appeals, according to records.

The lawsuit, filed in August by the U.S. Department of Justice against the state of Idaho, argues the state’s near-total ban on abortions violates the federal Emergency Medical Treatment and Labor Act. That act requires hospitals to provide medical care to stabilize all patients who come to the hospital with a medical emergency, and if the hospital does not comply, it stands to lose funding from the federal Medicare program.

Idaho’s abortion law allows affirmative defenses for rape, incest and to save the patient’s life. Medical providers who are found guilty of violating the statute face felony charges and suspension or permanent revocation of a medical license.

District Judge B. Lynn Winmill granted the Department of Justice’s request for an injunction blocking state officials from prosecuting medical providers or hospitals for performing an abortion to avoid jeopardizing a patient’s health.

The Legislature’s attorneys, Monte Neil Stewart and Daniel W. Bower, were permitted to appear at the initial hearing in the case in August, but Winmill denied further involvement because the state’s attorney general is already involved in the case. The attorneys also intervened in the challenge to Idaho’s abortion bans that were filed by Planned Parenthood, and Stewart argued the case before the Idaho Supreme Court in addition to the Idaho attorney general’s office’s attorneys. Since the beginning of 2022, the state has spent nearly $284,000 on the private representation for the Legislature. 

Stewart and Bower renewed their motion to intervene in the DOJ case in early February and it was again denied, which is the basis for the appeal.

If the Ninth Circuit also denies the appeal, the case could be referred to the U.S. Supreme Court. 

Stewart and Bower could not be reached for comment but have previously stated in court briefs that the Legislature’s position is that the Idaho attorney general’s office will not provide a full and zealous defense of the law. Those briefs were filed when Idaho’s attorney general was Lawrence Wasden, but he has since been replaced by Idaho Attorney General Raúl Labrador, who took office in January.

Labrador criticized Wasden during the primary and general election in 2022 for a perceived unwillingness to meet the wishes of Idaho legislators when defending laws in court. Labrador said he would aggressively defend the laws in court as a conservative.

Emily Kleinworth, spokesperson for Labrador’s office, told States Newsroom in an email the Legislature is aware that Labrador’s attorneys will “zealously defend state law.” Deputy Attorney General Steven Olsen wrote in a February brief to the court that the injunction should be lifted because the Idaho Supreme Court upheld the laws as constitutional in January.

“We have no opinion about the Legislature’s litigation strategy and are delighted to be working with them on any litigation. We refer you to their leadership or their outside counsel for any comments on their strategy,” Kleinworth said.

The Legislature’s representation is scheduled to file its first brief in the appeal in June. Winmill has not made a ruling on the motion to lift the injunction partially blocking the law.