Lawrence Wasden ag
Raúl Labrador defeated incumbent Lawrence Wasden and Arthur B. Macomber in the Republican primary for Attorney General of Idaho on May 17, 2022.
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with less than six months before voting begins, the legal jousting over the rules for the 2024 election is already underway. And former President Donald Trump’s campaign is getting support from allies who have stayed mostly under the national radar: red-state attorneys general.
In court filings made in recent months, these chief state legal officers have advanced a string of arguments — some strikingly far-reaching — that appear designed to lay the groundwork for Republican legal victories in the event of a contested presidential vote, or to otherwise boost Trump and the GOP.
Often led by Alabama Attorney General Steve Marshall, a loose coalition of Republican-led states has submitted briefs urging judges to throw out certain mail ballots.Weaken long-standing protections against racial discrimination in voting.
“These are all setting up an argument, potentially, to say that the 2024 election was flawed because of all these state practices that are questionable,” said Paul Nolette, a political science professor at Marquette University in Milwaukee who has written in depth on the role of state AGs. “The AGs just have been critical in pushing these arguments.”
Marshall’s office did not respond to a request to comment for this story. But last month Marshall also led a coalition of red states in submitting an amicus brief urging the Supreme Court to pause Trump’s election subversion trial tied to the events of Jan. 6, 2021 — a stance that aligned the group perfectly with the interests of the Trump campaign.
And in 2020, many of these same state AGs, including Marshall, sought to have the courts overturn Trump’s election loss.
An election decided in the courts?
The danger of outright election subversion this year appears to have receded somewhat, election law experts have said, thanks to important federal legislation and the results of the last midterms. But the chances that the election will be contested, and ultimately settled in the courts, remain very high.
In that scenario, advocates and experts say, these Republican AGs look well-placed to provide the kinds of conservative legal arguments that could prove pivotal, both by directly influencing court decisions and by infiltrating the broader public debate.
But many of these claims, democracy advocates warn — especially those that support new voting restrictions, reduce the power of minority voters, or undermine courts’ authority to set election rules — could threaten fair elections.
“A huge part of the overall anti-democracy movement is really based on continuing to find ways to use legal tactics as a jumping-off point to spread the election denier message,” said Lizzie Ulmer, senior vice president of strategy and communications for States United Democracy Center, a pro-democracy group.
“There are good and pro-democracy state AGs on both sides of the aisle. But the truth is there are AGs in office right now that have the potential to do real harm. And we’ve seen that in the past and we’re seeing it today.”
Growing politicization
The involvement of the Republican AGs in elections cases with national stakes marks the latest step in a decadeslong trend toward AGs taking on more politicized roles.
In less polarized times, experts say, state AGs mostly presented as apolitical prosecutors, and frequently teamed up across party lines to tackle issues of public concern.
How a new way to vote is gaining traction in states — and could transform US politics
That began to shift in earnest during the George W. Bush administration, when Democratic AGs used a series of splashy lawsuits against Wall Street firms and corporate polluters, among others, to advance national policy and political goals — and to boost their own national profiles.
But in the Trump era, the shift has intensified. Several close observers said a key moment came in 2017, when Republicans sought to oust then-Virginia AG Mark Herring, a Democrat — ending a long-standing custom in which neither party spent money targeting incumbent AGs of the other party. Herring ultimately won reelection, but that cycle saw record campaign spending on AG races.
In Republican-led states, the politicization of AG offices reached its height around the 2020 election, centered around the Republican Attorneys General Association, an advocacy group for Republican AGs. In the leadup to the events of Jan. 6, 2021, the group’s fundraising arm, the Rule of Law Defense Fund, sent robocalls urging people to gather for a march to the U.S. Capitol to “stop the steal” and “protect the integrity of our elections.”
Marshall, the Alabama AG, served as chair of RLDF at the time, and has said he was unaware of the robocalls. He has declined to say whether RAGA or RLDF staff were at the Capitol on Jan. 6, and his office has denied public records requests by the Alabama Political Reporter for his calendars covering the period.
Along with other Republican AGs, Marshall sought to cast doubt on the 2020 election results, telling Newsmax not long after the vote: “We obviously have concerns about some of the issues, specifically of irregularities and fraud in other places.”
On Dec. 10, 2020, Marshall and other Republican AGs joined Trump for a meeting at the White House. A day earlier, Marshall had announced that Alabama would join a lawsuit filed by Texas Attorney General Ken Paxton seeking to overturn the results in Pennsylvania and three other states narrowly won by Joe Biden. Seventeen Republican-led states ultimately signed on to the Texas case.
Idaho AG disagreed
One state that didn’t join the suit was Idaho, whose AG at the time, Republican Lawrence Wasden, saw the Texas lawsuit as an improper attempt to use the AG’s office to make policy — and to interfere in other states’ business.
“The policy-making function under both the state and federal constitutions is clearly put in the hands of the legislative branch of government,” Wasden told States Newsroom. “The AG is an executive officer, and does not have those powers. That’s not how we should make public policy.”
After 20 years in office, Wasden lost his 2022 reelection bid in the Republican primary to former U.S. Rep. Raul Labrador — a defeat Wasden attributes to GOP voter anger at his decision not to join the Texas case. But he hasn’t wavered in his view that it was the right call.
“If Texas can control or influence the outcome of the election in Pennsylvania, then California can influence the election in Idaho,” Wasden said. “And that is not how federalism works.”
Labrador was elected attorney general later that year, and has signed Idaho on to several of the elections cases brought by Republican AGs.
Raúl Labrador, who won his race for attorney general in 2022, has signed Idaho on to several of the elections cases brought by other Republican AGs. Otto Kitsinger for Idaho Capital Sun
As for Marshall, in 2021, he withdrew Alabama from the bipartisan National Association of Attorneys General, saying the group had “moved too far to the left.” The next year, Texas, Missouri and Montana followed suit.
In 2022, Marshall declined to say, when asked under oath while testifying before Congress, that Biden was “duly elected,” answering only that “he is the president of this country.”
Months later, Marshall was elected chair of RAGA. Now, he’s leading the charge among Republican AGs on election cases with an eye on 2024.
Weakening voting protections
Marshall has battled on behalf of strict voting laws in his own state.
His office energetically, and successfully, fought off a 2020 court challenge to an Alabama law that bars people with past convictions from casting a ballot. In that year’s election, he also succeeded in getting the Supreme Court to block an effort to allow curbside voting, which voting advocates said could offer easier access for elderly and disabled voters.
But it’s Marshall’s work on behalf of Republicans looking to influence election rules far beyond the Yellowhammer State that could have an even greater impact.
In January, Marshall led a coalition of 17 red states that submitted an amicus brief supporting a bid by national Republicans to require Pennsylvania to reject mail ballots with incorrect or missing dates.
In Pennsylvania’s 2020 election, there were over 10,000 such ballots, and how the case is resolved could help determine the winner of this pivotal swing state, if the result is very close. Democrats have voted by mail at significantly higher rates than Republicans in recent elections.
But the impact could be broader still. A district court found last year that the missing or incorrect dates are irrelevant to establishing a vote’s legitimacy.
That means, the court ruled, that under the materiality provision of civil rights law — first included in the 1964 Civil Rights Act, then extended to cover non-federal elections in the Voting Rights Act the following year — a missing or incorrect date can’t be used as a reason to reject a vote.
In their brief, Alabama and the other states called the district court’s ruling “seriously misguided.”
They argued that the materiality provision should be read more narrowly, and doesn’t bar states from imposing reasonable ballot integrity measures. And, they claimed, the provision contains no “private right of action,” meaning it can be enforced only by the U.S. Justice Department, not by the civil rights groups involved in the Pennsylvania case.
By itself, making the materiality provision harder to use would likely have only a limited impact, since it hasn’t been among the tools most commonly used to protect voting rights, noted Cameron Kistler, counsel at Protect Democracy, a nonpartisan democracy advocacy group.
But, he said, it comes in the context of other ongoing conservative legal attacks on voting protections — including attempts to weaken the Voting Rights Act, and suggestions by the Supreme Court that it may lower the level of scrutiny it applies to voting laws that are accused of harming voters.
“The tools that you’d use to ensure free and fair elections are slowly being pulled away,” said Kistler. “When you take them all together, that’s when it starts to get really problematic.”
Voting Rights Act
As if to prove the point, a separate amicus brief submitted in December by Marshall’s office argued that Section 2 of the Voting Rights Act — the law’s most important plank, since the Supreme Court neutered Section 5 a decade ago — also contains no private right of action.
Marshall and his allies were urging a federal appeals court to reverse a ruling striking down Louisiana’s congressional map as a racial gerrymander under Section 2.
The notion that Section 2 contains no private right of action had until recently been seen by many advocates as outlandish. But a federal judge endorsed it in a separate 2022 case involving an Arkansas redistricting plan, brought by Arkansas Attorney General Tim Griffin, a Republican, who has signed his state on to several of Marshall’s amicus briefs. That decision was upheld on appeal in December.
The issue is likely to come before the Supreme Court. A ruling for Arkansas could dramatically limit the power of the VRA to stop racial discrimination in voting.
Separately, Marshall has sought to defend Alabama’s own redistricting plan. In arguing that the state should not have to draw a new map with an additional majority-Black district, his office adopted an interpretation of the VRA that, experts said, would have mad
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with less than six months before voting begins, the legal jousting over the rules for the 2024 election is already underway. And former President Donald Trump’s campaign is getting support from allies who have stayed mostly under the national radar: red-state attorneys general.
In court filings made in recent months, these chief state legal officers have advanced a string of arguments — some strikingly far-reaching — that appear designed to lay the groundwork for Republican legal victories in the event of a contested presidential vote, or to otherwise boost Trump and the GOP.
Often led by Alabama Attorney General Steve Marshall, a loose coalition of Republican-led states has submitted briefs urging judges to throw out certain mail ballots.Weaken long-standing protections against racial discrimination in voting.
“These are all setting up an argument, potentially, to say that the 2024 election was flawed because of all these state practices that are questionable,” said Paul Nolette, a political science professor at Marquette University in Milwaukee who has written in depth on the role of state AGs. “The AGs just have been critical in pushing these arguments.”
Marshall’s office did not respond to a request to comment for this story. But last month Marshall also led a coalition of red states in submitting an amicus brief urging the Supreme Court to pause Trump’s election subversion trial tied to the events of Jan. 6, 2021 — a stance that aligned the group perfectly with the interests of the Trump campaign.
And in 2020, many of these same state AGs, including Marshall, sought to have the courts overturn Trump’s election loss.
An election decided in the courts?
The danger of outright election subversion this year appears to have receded somewhat, election law experts have said, thanks to important federal legislation and the results of the last midterms. But the chances that the election will be contested, and ultimately settled in the courts, remain very high.
In that scenario, advocates and experts say, these Republican AGs look well-placed to provide the kinds of conservative legal arguments that could prove pivotal, both by directly influencing court decisions and by infiltrating the broader public debate.
But many of these claims, democracy advocates warn — especially those that support new voting restrictions, reduce the power of minority voters, or undermine courts’ authority to set election rules — could threaten fair elections.
“A huge part of the overall anti-democracy movement is really based on continuing to find ways to use legal tactics as a jumping-off point to spread the election denier message,” said Lizzie Ulmer, senior vice president of strategy and communications for States United Democracy Center, a pro-democracy group.
“There are good and pro-democracy state AGs on both sides of the aisle. But the truth is there are AGs in office right now that have the potential to do real harm. And we’ve seen that in the past and we’re seeing it today.”
Growing politicization
The involvement of the Republican AGs in elections cases with national stakes marks the latest step in a decadeslong trend toward AGs taking on more politicized roles.
In less polarized times, experts say, state AGs mostly presented as apolitical prosecutors, and frequently teamed up across party lines to tackle issues of public concern.
How a new way to vote is gaining traction in states — and could transform US politics
That began to shift in earnest during the George W. Bush administration, when Democratic AGs used a series of splashy lawsuits against Wall Street firms and corporate polluters, among others, to advance national policy and political goals — and to boost their own national profiles.
But in the Trump era, the shift has intensified. Several close observers said a key moment came in 2017, when Republicans sought to oust then-Virginia AG Mark Herring, a Democrat — ending a long-standing custom in which neither party spent money targeting incumbent AGs of the other party. Herring ultimately won reelection, but that cycle saw record campaign spending on AG races.
In Republican-led states, the politicization of AG offices reached its height around the 2020 election, centered around the Republican Attorneys General Association, an advocacy group for Republican AGs. In the leadup to the events of Jan. 6, 2021, the group’s fundraising arm, the Rule of Law Defense Fund, sent robocalls urging people to gather for a march to the U.S. Capitol to “stop the steal” and “protect the integrity of our elections.”
Marshall, the Alabama AG, served as chair of RLDF at the time, and has said he was unaware of the robocalls. He has declined to say whether RAGA or RLDF staff were at the Capitol on Jan. 6, and his office has denied public records requests by the Alabama Political Reporter for his calendars covering the period.
Along with other Republican AGs, Marshall sought to cast doubt on the 2020 election results, telling Newsmax not long after the vote: “We obviously have concerns about some of the issues, specifically of irregularities and fraud in other places.”
On Dec. 10, 2020, Marshall and other Republican AGs joined Trump for a meeting at the White House. A day earlier, Marshall had announced that Alabama would join a lawsuit filed by Texas Attorney General Ken Paxton seeking to overturn the results in Pennsylvania and three other states narrowly won by Joe Biden. Seventeen Republican-led states ultimately signed on to the Texas case.
Idaho AG disagreed
One state that didn’t join the suit was Idaho, whose AG at the time, Republican Lawrence Wasden, saw the Texas lawsuit as an improper attempt to use the AG’s office to make policy — and to interfere in other states’ business.
“The policy-making function under both the state and federal constitutions is clearly put in the hands of the legislative branch of government,” Wasden told States Newsroom. “The AG is an executive officer, and does not have those powers. That’s not how we should make public policy.”
After 20 years in office, Wasden lost his 2022 reelection bid in the Republican primary to former U.S. Rep. Raul Labrador — a defeat Wasden attributes to GOP voter anger at his decision not to join the Texas case. But he hasn’t wavered in his view that it was the right call.
“If Texas can control or influence the outcome of the election in Pennsylvania, then California can influence the election in Idaho,” Wasden said. “And that is not how federalism works.”
Labrador was elected attorney general later that year, and has signed Idaho on to several of the elections cases brought by Republican AGs.
Raúl Labrador, who won his race for attorney general in 2022, has signed Idaho on to several of the elections cases brought by other Republican AGs. Otto Kitsinger for Idaho Capital Sun
As for Marshall, in 2021, he withdrew Alabama from the bipartisan National Association of Attorneys General, saying the group had “moved too far to the left.” The next year, Texas, Missouri and Montana followed suit.
In 2022, Marshall declined to say, when asked under oath while testifying before Congress, that Biden was “duly elected,” answering only that “he is the president of this country.”
Months later, Marshall was elected chair of RAGA. Now, he’s leading the charge among Republican AGs on election cases with an eye on 2024.
Weakening voting protections
Marshall has battled on behalf of strict voting laws in his own state.
His office energetically, and successfully, fought off a 2020 court challenge to an Alabama law that bars people with past convictions from casting a ballot. In that year’s election, he also succeeded in getting the Supreme Court to block an effort to allow curbside voting, which voting advocates said could offer easier access for elderly and disabled voters.
But it’s Marshall’s work on behalf of Republicans looking to influence election rules far beyond the Yellowhammer State that could have an even greater impact.
In January, Marshall led a coalition of 17 red states that submitted an amicus brief supporting a bid by national Republicans to require Pennsylvania to reject mail ballots with incorrect or missing dates.
In Pennsylvania’s 2020 election, there were over 10,000 such ballots, and how the case is resolved could help determine the winner of this pivotal swing state, if the result is very close. Democrats have voted by mail at significantly higher rates than Republicans in recent elections.
But the impact could be broader still. A district court found last year that the missing or incorrect dates are irrelevant to establishing a vote’s legitimacy.
That means, the court ruled, that under the materiality provision of civil rights law — first included in the 1964 Civil Rights Act, then extended to cover non-federal elections in the Voting Rights Act the following year — a missing or incorrect date can’t be used as a reason to reject a vote.
In their brief, Alabama and the other states called the district court’s ruling “seriously misguided.”
They argued that the materiality provision should be read more narrowly, and doesn’t bar states from imposing reasonable ballot integrity measures. And, they claimed, the provision contains no “private right of action,” meaning it can be enforced only by the U.S. Justice Department, not by the civil rights groups involved in the Pennsylvania case.
By itself, making the materiality provision harder to use would likely have only a limited impact, since it hasn’t been among the tools most commonly used to protect voting rights, noted Cameron Kistler, counsel at Protect Democracy, a nonpartisan democracy advocacy group.
But, he said, it comes in the context of other ongoing conservative legal attacks on voting protections — including attempts to weaken the Voting Rights Act, and suggestions by the Supreme Court that it may lower the level of scrutiny it applies to voting laws that are accused of harming voters.
“The tools that you’d use to ensure free and fair elections are slowly being pulled away,” said Kistler. “When you take them all together, that’s when it starts to get really problematic.”
Voting Rights Act
As if to prove the point, a separate amicus brief submitted in December by Marshall’s office argued that Section 2 of the Voting Rights Act — the law’s most important plank, since the Supreme Court neutered Section 5 a decade ago — also contains no private right of action.
Marshall and his allies were urging a federal appeals court to reverse a ruling striking down Louisiana’s congressional map as a racial gerrymander under Section 2.
The notion that Section 2 contains no private right of action had until recently been seen by many advocates as outlandish. But a federal judge endorsed it in a separate 2022 case involving an Arkansas redistricting plan, brought by Arkansas Attorney General Tim Griffin, a Republican, who has signed his state on to several of Marshall’s amicus briefs. That decision was upheld on appeal in December.
The issue is likely to come before the Supreme Court. A ruling for Arkansas could dramatically limit the power of the VRA to stop racial discrimination in voting.
Separately, Marshall has sought to defend Alabama’s own redistricting plan. In arguing that the state should not have to draw a new map with an additional majority-Black district, his office adopted an interpretation of the VRA that, experts said, would have made it all but impossible to use for stopping racial gerrymanders.
Nicholas Stephanopoulos, a prominent election law scholar at Harvard Law School, has called Alabama’s approach to the question “directly contrary to 40 years of precedent.”
The claim was too extreme even for the conservative-dominated Supreme Court, which ultimately ordered Alabama to create a new map.
In response, Marshall signaled an agenda that went well beyond Alabama.
“There should be nothing more offensive to the people of our great state than to be sidelined in 2023 by a view of Alabama that is stuck in 1963,” he said in a statement. “This racial agenda is pressed by left-wing activists, not just in Alabama, but in any Republican state where it might advantage Democrats.”
And he compared the ruling, which aimed to empower Black voters, with Jim Crow.
“If this brazen and divisive commandeering is permitted without even a whisper of concern from other quarters, America’s congressional elections as we know them will never be the same,” Marshall continued. “We will be grouped together by race alone, with counties and cities split down the middle—the same way that we were so wrongfully segregated once before.”
Marshall also led a coalition of 18 GOP-led states that filed a 2021 amicus brief supporting Arizona’s defense of a law requiring voters who don’t sign their mail ballots to do so by 7 p.m. on election night.
The issue may seem minor, but Marshall’s brief invoked a far more fundamental question, arguing that state legislatures, not the courts, are in charge of setting election rules.
“The U.S. Constitution is unambiguous about the right of state legislatures to determine the manner of holding elections within their respective states,” wrote Marshall. “Accordingly, state legislatures, not federal courts, are vested with the legal authority to determine state election laws. Court attempts to micromanage election laws duly passed by state legislatures conflict with our constitutional structure and legal precedent.”
When North Carolina brought a version of this claim — known as the Independent State Legislature Theory — to the Supreme Court last year, experts warned that it could radically reshape election law, giving partisan state lawmakers almost unfettered power to make the rules. The Justices ultimately rejected the argument.
Why AGs enjoy influence
Advocates say it’s difficult to assess whether, and to what extent, courts are swayed by amicus briefs. But, they add, the role of state AGs as their state’s chief legal officer gives their claims an invaluable sheen of authority.
GOP backs voting by mail, yet turns to courts to restrict it in battleground states
“State AGs are taken seriously because of the governmental role they play, in a way that parties, who do not have a governmental role, typically are not,” said Dax Goldstein, a senior counsel at States United Democracy Center. “So there’s a real difference between a sitting AG filing a brief and [Donald Trump lawyer] John Eastman filing a brief.”
In addition, since a 2007 Supreme Court ruling in a case where a group of states led by Massachusetts sued the George W. Bush administration’s Environmental Protection Agency, states have enjoyed more power than individual plaintiffs to bring lawsuits on public policy issues.
“States have a greater ability to bring legal challenges than private citizens do,” said Kistler. “So when you have these super active state officials with a greater ability to bring cases than private parties and a judiciary that’s willing to entertain the cases, it makes a difference.”
Nolette, the Marquette political scientist, noted that if the AGs’ series of briefs in election cases appear coordinated, it’s no accident.
“There’s a lot of strategy that goes into planning these far-reaching arguments,” Nolette said, adding that AGs of both parties use their partisan organizations — the Republican Attorney Generals Association, and the Democratic Attorney Generals Association — to align their efforts and figure out the venues where they might have the most chance of success.
“It’s almost like buying a lottery ticket, trying to boost the chances of those arguments taking hold somewhere,” Nolette continued. “And once they get one district court judge to agree with it, then it moves them to a different state of respectability. It’s like, well, a federal judge has agreed with us, so this is a legitimate argument, even if it was considered totally out there in previous years.”
*Ralph Chapoco contributed to this report.
Stateline is part of States Newsroom, a nonprofit news network
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Since Dobbs, many of the nightmare scenarios about abortion access have come true. Trigger bans have gone into effect. Healthcare for miscarriages has been delayed. Common prescriptions that can cause abortion (abortifacients) aren’t being filled at pharmacies.
Despite assurances from anti-choice people, total abortion bans are not making exceptions for emergency healthcare situations or they are so confusing that they’re making doctors scared to perform abortions even when it’s necessary to save the person’s life.
While abortions should be legal and accessible no matter the reason, it’s particularly dangerous when one can’t get one in a life-or-death situation. There isn’t time to cross state lines or the pregnancy is too far along for a self-managed abortion.
The White House has issued guidance that abortions must be performed to save the life of the pregnant person or prevent serious risk, but this week a court sided with a Texas argument against saving lives – of course, celebrated by the “pro-life” movement.
While the response to Dobbs from the current administration has been mixed, a clarifying guidance from the US Department of Health and Human Services is a vital tool in saving pregnant people’s lives.
In 1986, the Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA). The law required any hospital that accepts Medicare payments to provide emergency treatment to anyone regardless of their ability to pay or their legal status.
Obviously, this included emergency conditions related to pregnancy, including labor or miscarriage. The EMTALA requires hospitals to provide medical screenings as well as stabilization (or a transfer to a hospital that can provide medical care to accomplish stabilization).
READ MORE: How GOP candidates are 'feeling the pressure' navigating abortion in the post-Roe era: conservative
In July, after Dobbs, the HHS clarified that the federal guidance under the EMTALA required performing an abortion if it’s necessary to save the pregnant person’s life or to prevent serious health risks.
HHS ensured its policy guidance had teeth.
Secretary Xavier Becerra emphasized that this federal policy preempts state law and that hospitals risk their Medicare payments if they do not comply. Such a policy from the HHS should protect emergency abortion in all 50 states despite individual state law.
The policy guidance makes it irrelevant if an abortion ban has a carve out for the life of the mother, because such abortions would be required (with the patient’s consent) under federal law as part of “stabilizing” the patient. While they didn’t issue an exhaustive list of pregnancy conditions that would warrant a federally required emergency abortion, “ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features” were explicitly stated as qualifying conditions.
Unfortunately, states are challenging the HHS policy guideline in federal court and through total abortion ban legislation. State attorneys general are arguing against saving a pregnant person’s life.
Keep in mind, in many relevant cases, the choice is between allowing the pregnant person and fetus to die, and performing an abortion to save the pregnant person (or in the case of miscarriage, the fetus is already dead and they still want to let the pregnant person die).
The remaining cases are a choice between letting the mother die in the hopes that the fetus can be saved and performing an abortion to save the life of the mother. As far as I am aware, the HHS policy guidance doesn’t touch on the maternal fetal conflictwhen a pregnant person is diagnosed with cancer and might be denied treatment because said treatment could harm the fetus.
So State attorneys general in Texas and Idaho want to let pregnant people die even though denying abortion won’t save the fetus.
Ironically, part of their argument that the federal policy guidelines should be enjoined by a judge is that abortion bans in Texas and Idaho, and every other state, have life-of-the-mother exceptions.
In the opinion written by the Texas court enjoining the HHS guideline, the judge argues that policy guidelines are unnecessary and there is no conflict between state and federal law.
This is weird given that the Texas attorney general said that the HHS policy guidelines would require Texas doctors to violate state law.
Texas also argued that the EMTALA did not guarantee access to a specific treatment (and obviously didn’t mention abortion), so the federal government cannot require abortions using that law.
However, as some legal experts argue, if abortion is the only way to stabilize a patient, requiring such a procedure clearly falls under the EMTALA. There are many cases in which an abortion would be necessary in order to save the life of a patient. Therefore, denying one is tantamount to denying stabilizing care under the EMTALA.
The Texas opinion went further. The language of the EMTALA requires stabilizing the mother as well asthe fetus, but it was passed in 1986 when Roe was still law and abortion was legal in all 50 states.
It’s ahistorical and nonsensical to suggest that the law wouldn’t protect abortion to save the life of the mother since abortions for any reason were legal at the time the law was written.
Despite that clear rational interpretation, the Texas judge used the mention of the fetus in the law to argue it should protect the mother as well as “unborn children” (his wording - the EMTALA uses “fetus”).
Therefore, not only does this opinion enjoin federal policy guidance. It also elevates the fetus to the standing of a patient under the EMTALA, which supports the argument for the fetus’s personhood. (Again, this is why we need to embrace abortion as self-defense).
The Idaho case is more encouraging.
Unlike the Texas case, this suit resulted from the DOJ challenging the restrictive Idaho law that, the DOJ argued, violated the federal policy guidelines. Idaho’s trigger ban only allowed abortions when necessary to prevent death, which is more restrictive than the federal policy guidance that requires an abortion be performed if the pregnant person faces death or serious health risk.
The Idaho judge issued a temporary injunction on Idaho’s trigger abortion ban, because, “Allowing the criminal abortion ban to take effect, without a cutout for EMTALA-required care, would inject tremendous uncertainty into precisely what care is required (and permitted) for pregnant patients.”
The Texas and Idaho cases are ongoing. There are sure to be more lawsuits brought by state attorneys general as well as by the Department of Justice. We will have to wait and see if the HHS policy guidance requiring abortions to prevent death or serious risk stands.
Do not come away from reading this assuming the conflict is only about abortions in the case of serious risk or that abortions will always be allowed to save the life of the mother. Quibbling over bodily risk or death will absolutely result in pregnant people dying.
The more restrictive exceptions require doctors to delay care until sure the pregnant person is at risk or until a fetal heartbeat stops.
They also create confusion for doctors and care providers about when an abortion can be performed under state law. That confusion will result in the delay or refusal of care even when the pregnant person presents with a complication that will cause death.
Any abortion ban will delay care and result in higher maternal mortalities, but fighting against medically necessary abortions guarantees you’re fighting to explicitly let pregnant people die.
READ MORE:Pink wave? Women rise up for reproductive rights — as conservatives scramble to stop them
https://www.documentcloud.org/documents/3098828-AG-RAGA-Call-Sheet.html
raga bs
Lawrence Wasden is Idaho’s 32nd Attorney General. He was elected to his fourth term on November 4, 2014, and is the longest serving attorney general in the state’s history.
Mr. Wasden has dedicated most of his professional career to public service. He started working in the Attorney General’s Office in 1989, when he was appointed as a Deputy Attorney General and assigned to the Idaho State Tax Commission. He was promoted to Deputy Chief of Staff then later to Chief of Staff. He was first elected Attorney General in 2002.
Before serving in the Attorney General’s Office, Mr. Wasden was a Deputy Prosecuting Attorney in Canyon County and the Prosecuting Attorney in Owyhee County.
Throughout his career, AG Wasden has been recognized for his leadership in the legal profession, public health, protecting children and consumers of all ages, prosecuting public corruption cases and promoting open and transparent government.
As Attorney General, Mr. Wasden has framed his leadership of the office around two fundamental principles: The Rule of Law and calling legal “balls and strikes” fair and square.
Mr. Wasden is currently the Chair of the Conference of Western Attorneys General and a past President of the National Association of Attorneys General. In his role with the Conference of Western Attorneys General, AG Wasden has been active in the Alliance Partnership, a program devoted to strengthening and reforming the justice system in Mexico. Since 2006, AG Wasden and the Alliance Partnership have led multiple training seminars for Mexican prosecutors, investigators and forensic experts making the transition to an adversarial system of justice.
AG Wasden served for more than a decade on the Board of Directors of the American Legacy Foundation, the nonprofit created in the wake of the national tobacco settlement to educate youth and adults on the risks and dangers of smoking. He stepped down as Board Chairman in 2014. Recognizing Mr. Wasden’s service, the Foundation donated $350,000 to the University of Idaho College of Law to create a scholars program in his name.
In 2007, Mr. Wasden received “The People First” Award from the Idaho Newspaper Foundation for his work to promote and educate government officials, media and citizens about Idaho’s Open Meeting Law and Public Records Law. Mr. Wasden continues to travel around the state annually to promote open and transparent government at all levels and educate Idahoans on the state’s public records laws.
Other recognition Mr. Wasden has received include:
- The Idaho Council on Domestic Violence and Victim Assistance Leadership Award in 2009 for his support of victims’ rights and efforts to reduce domestic violence.
- The Conference of Western Attorneys General’s rarely-given “Courage in Public Service” Award in 2010, given for acting with courage and integrity in fulfilling the duties of office.
- Idaho Voices for Children named him the “2011 Children’s Champion” for efforts to protect children from sexual abuse. The honor came after Mr. Wasden worked to launch the Internet Crimes Against Children Task Force and the ProtecTeens Internet Safety Program.
- The Idaho Business Review honored Mr. Wasden in 2014 with the “Lifetime Achievement Award” as part of its Leaders in Law program.
AG Wasden earned his J.D. from the University of Idaho and was admitted to the Idaho State Bar in 1985. He earned his Bachelor of Arts in political science from Brigham Young University in 1982.
Mr. Wasden is a founding member, and past chairman, of the Government and Public Lawyers Section of the Idaho State Bar. He also serves on the University of Idaho College of Law Advisory Board.
Lawrence and Tracey Wasden were married in 1980 and live in Nampa, Idaho. They are proud parents of four children and seven grandchildren.
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