Judges Lucy Koh and Salvador Mendoza, nominated by President Biden to the Ninth Circuit, cast the deciding votes preserving a district court injunction against a restrictive Idaho abortion law while the full court considers the appeal. The November 2023 decision was in United States v Idaho, 2023 U.S. App.Lexis 30135 (Ninth Cir. Nov. 13, 2023)

 

What happened in this case?

After the Supreme Court overturned Roe v Wade in its Dobbs decision, the state of Idaho passed an extremely restrictive law categorized as a “total abortion ban.”  The federal government challenged the law, contending that it is pre-empted by the federal Emergency Medical Treatment and Labor Act (EMTLA). According to the Justice Department, EMTLA guarantees access to abortions when necessary to stabilize emergency medical conditions that put a person’s health in serious jeopardy.

A district court granted a preliminary injunction against the Idaho law. But a three-judge Ninth Circuit panel of Trump judges granted a stay of the district court order that put the restrictive law back into effect while the case is being appealed.

Days later, the Justice Department filed an emergency request for a full court or en banc hearing. (Because of the size of the Ninth Circuit, eleven randomly selected judges rather than the full court hear cases en banc). The court agreed to hear the case en banc, and an en banc panel considered a motion by Idaho to stay the district court decision and put the restrictive law back into effect during the appeal.

How did Judges Koh, Mendoza, and the En Banc Panel Rule and Why is it Important?

Judges Koh and Mendoza cast deciding votes in a 7-4 ruling that rejected Idaho’s motion and kept the district court injunction against the Idaho law in effect pending appeal. Four judges, including three appointed by Trump, dissented and would have granted Idaho’s motion. The court will consider the case in late January, 2024.

The deciding votes by Biden judges Koh and Medoza and the en banc majority opinion are obviously extremely important to the future of reproductive rights in Idaho. The ruling is also significant with respect to rights guaranteed by the EMTLA generally and other states that have passed or may pass such extremely restrictive abortion laws. As the Justice Department pointed out, the earlier decision allowing the Idaho law to take effect pending consideration of the case conflicted with a Fourth Circuit decision interpreting the EMTLA. The ruling also serves as another reminder of the importance of promptly confirming fair-minded Biden nominees like Judges Koh and Mendoza to our federal courts.