A changed judiciary gives a new dynamic to anti-abortion efforts

By Devon Downey, Idaho Reports

On Wednesday, the Senate State Affairs committee introduced a bill that would prohibit abortions after a fetal heartbeat is detected, with exceptions for medical emergencies, rape, and incest. Under this law, doctors would not be subject to prosecution, rather they could be disciplined by the Idaho State Board of Medicine.

Idaho would be the 12th state to have a fetal heartbeat abortion ban if this legislation is passed. 

While they have been introduced in one-fourth of the states, fetal heartbeat legislation has never been put into action. Every state that has passed similar legislation has paused enactment pending further litigation per a court order. Blaine Conzatti, Director of Advocacy for Family Policy Alliance of Idaho, told the committee during Wednesday’s hearing that this bill would not create the same legal liability that other abortion restrictions do because it wouldn’t be triggered until an appellate court has declared a similar law constitutional. 

None of the other 11 states with a fetal heartbeat law are in the 9th Circuit Court of Appeals, something that was not brought up in testimony today but is relevant to the implementation of this law. Conservatives have long criticized the 9th Circuit, claiming that the court is too liberal. The 9th Circuit, which covers nine Western states, typically rules against abortion restrictions. However, the Court did back President Donald Trump’s rules that prohibited taxpayer-funded family planning clinics from referring abortions in 2020.

This bill follows Senate Bill 1385 from last year which would criminalize abortions in Idaho if the United States Supreme Court “restores to the states their authority to prohibit abortion” or a constitutional amendment is passed giving states the right to prohibit abortion. Conzatti explained that while that is already in statute, it could take some time before the trigger is activated. A circuit court opinion declaring fetal heartbeat legislation constitutional, he believes, could happen in the next one or two years based on changes in the federal judiciary. 

In his single term, Trump appointed nearly as many appellate judges as President Barack Obama had in his two terms. By the end of his term, Trump had appointed one-third of the Supreme Court, just under one-third of the appellate courts, and one-quarter of district courts. Following the confirmation of Justice Amy Coney Barrett, conservatives have hoped that the 6-3 Republican-appointed majority Supreme Court would reshape abortion policy throughout the country. 

This bill is the third abortion-related legislation this session. House Bill 17, co-sponsored by Rep. Bruce Skaug and Sen. Christy Zito, would prohibit public funds being given to health care facilities that perform or refer abortions. House Bill 56 – a personal bill by Reps. Heather Scott and Ron Nate – would prohibit and criminalize abortions, with both doctors and patients being subject to prosecution. It would also repeal part of Idaho Code that prohibits prosecutors from charging doctors and patients with homicide for performing or procuring an abortion. 

Even in a legislature as conservative as Idaho’s, there seems to be little appetite for legislation that would prosecute those seeking an abortion. Scott brought a bill last year with the same name that lingered in the House Ways and Means committee without receiving a hearing.

All three bills are now waiting for a public hearing, with HB 17 in the House State Affairs committee and HB 56 in the House Ways and Means committee.

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