If you have been in a hospital emergency room lately, you will have noticed a poster on the wall proclaiming in 15 or 20 different languages that the federal Emergency Medical Treatment and Active Labor Act (EMTALA) (42 U.S. Code § 1395dd - LII ) requires the hospital to treat you for an emergency even if can’t pay for it.

And if you have been awake at all this past week, you will have noticed the MSM devoting trainloads of ink and mega hours of digital platform time to gaslighting us all about the horror of the nasty Idaho abortion statute (Id 18-622) that allegedly stiff-arms the EMTALA statute.

However, if you will study both statutes you will see that there is no conflict between the two statutes.

Understanding this fracas requires understanding two fundamental issues: (1) What is an abortion? (2) What is an emergency?

Image by freepic.diller.

Re (1), as the text of the Idaho statute, Id 18-622, makes clear, the term “abortion” does not mean killing a child. To the contrary, it means interrupting a pregnancy. Hence, an abortion may or may not result in a child’s death.

And re (2), the EMTALA defines an emergency medical condition as “a condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the individual’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of bodily organs.” The point about an individual’s health does not have an exclusion for the health of an unborn child.

Now, look at the Idaho statute. We can concisely schematize the pertinent parts of the statute as follows:

Simplified Outline of Idaho Statute 18-622

18-622(1)

Except as provided in 18-622(2), performing an actual or attempted abortion is criminal abortion, a felony.

18-622(2)

(a) An abortion is not a criminal abortion if

(i) The abortion is necessary to prevent the mother’s death, excluding by suicide, or

(ii) The abortion was performed in the manner that provided the best opportunity for the unborn child to live, unless the abortion poses a greater risk for the mother’s death, excluding by suicide.

As you can see, the Idaho statute could be loosely paraphrased as “Criminal abortion is an abortion performed for the purpose of killing the baby.” Hence, a pregnant woman whose condition qualified as an EMTALA “emergency medical condition” but did not desire her child’s death can get an abortion under 18-622(2)(ii) without her surgeon committing criminal abortion. Her surgeon may lawfully perform the abortion so long as he attempts in good faith to save the baby. What the Idaho statute does not allow is for those who want to kill their baby to use the EMTALA emergency condition as a cover for the crime.

In summary, may an "emergency" abortion be lawfully performed in Idaho?  Yes, provided the "emergency" qualifies as an emergency under EMTALA, and further provided that every effort is made to save the life of the baby.