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In Court

Idaho Law Faces Challenge

Professor Greenfield and several alumni author amicus brief related to emergency and abortion care.

Professor Kent Greenfield 

The Supreme Court will decide a case this spring that raises important issues of state versus federal power in the context of abortion care. Under a federal law called the Emergency Medical Treatment and Labor Act (EMTALA), Medicare-funded hospitals are required to treat anyone who comes to the ER experiencing an emergency medical condition with stabilizing care.

There have been dozens of amicus briefs filed in the case. One of those briefs was authored by a team of lawyers at Mintz—many of whom are BC Law alumni—along with Professor Kent Greenfield. The Mintz brief was filed on behalf of several legal scholars—including Greenfield—with expertise in Supreme Court procedure and jurisdiction. (Greenfield is the principal editor of the two Supreme Court volumes of Moore’s Federal Practice.)

After the Supreme Court overruled Roe v. Wade in 2022, the state of Idaho passed a total abortion ban that purported to make it criminal for a doctor to perform an abortion even in cases of rape or incest or even in the case of non-viable ectopic pregnancies. The law did allow doctors to avoid criminal liability if an abortion was necessary to save the life of the patient. But doctors could only prove that necessity as an affirmative defense, provable in a criminal trial after arrest and possible detention. 

The United States sued to enjoin Idaho’s law, claiming that it was preempted in part by EMTALA’s requirement that doctors provide emergency care. A lower court enjoined the law, and after a series of quick court rulings in various state and federal courts, the Supreme Court put the Idaho law back in force and decided to hear the preemption case. 

The brief argues that the Court should dismiss the case and not reach the merits in the current dispute. The facts on the ground have changed considerably; both the Idaho legislature and the Idaho Supreme Court have changed the interpretation of the Idaho law in the time since the lower court ruled. The brief also argues that the US Supreme Court should wait until lower courts have done their full review before weighing in. 

The brief came together under an extremely tight time frame—in less than three weeks. The Mintz team was made up of Emily Kanstroom Musgrave ’10, co-chair of the firm’s appellate practice; Susan Finegan ’91, chair of the Pro Bono Committee; member Meredith Leary ’02; and associates Mitchell Clough ’19 and Michael Alario ’23.

“It was a delight to work with the excellent team of Mintz lawyers on this,” said Greenfield. “The last time I saw several of these lawyers were when they were in my classroom. I am proud to claim them as colleagues—especially talented and committed ones at that.”