Upcoming SCOTUS case could reshape Idaho abortion law

by Logan Finney, Idaho Reports

The U.S. Supreme Court returns to the bench for a “blockbuster” 2021 term, and one case in particular could have major impacts on abortion in Idaho.

The case is a challenge to Roe v. Wade and Planned Parenthood v. Casey precedent that a person has the constitutional right to terminate their pregnancy before fetal viability — around 22 to 24 weeks — and that the states cannot place an undue burden on that right.

Mississippi passed a law in 2018 that prohibits abortion after 15 weeks except in the case of medical emergencies or severe fetal abnormalities. The law was blocked by a district judge in 2018 and by the 5th U.S. Circuit Court of Appeals in 2019 based on the Roe precedent.

In Dobbs v. Jackson Women’s Health Organization, which the high court will hear on Dec. 1, the state of Mississippi is asking to reconsider whether all state pre-viability abortion bans are unconstitutional.

Gov. Brad Little and Republican governors in other states have signed onto an amicus brief in support of the case.

If the Supreme Court decides to strike down Roe and return decision-making authority on abortion to the states, Idaho Code 18-622 would make performing an abortion a criminal act punishable by two to five years in prison and a 6-month medical license suspension, with a permanent license suspension upon the second offense.

Idaho’s trigger law contains exceptions if the physician determines an abortion is necessary to prevent the death of the mother, or if the mother reports rape or incest and provides the physician a copy of the police report. Critics point out that sexual assault and rape commonly go unreported, which they argue makes those exemptions unworkable.

Criminal convictions and penalties under the law would apply only to the physician who performs the procedure, not the pregnant mother.

Idaho lawmakers have made many additional attempts to restrict abortion in the state.

The legislature passed a “fetal heartbeat bill” in the 2021 session, but the law does not go into effect until 30 days after a federal appeals court upholds such a law elsewhere in the country “on the grounds that such restriction or ban does not violate the United States constitution.”

The heartbeat law would ban abortions after a fetal heartbeat is detectable — typically around 6 weeks — except in the case of medical emergencies or in the case of rape or incest with an accompanying police report. Little signed that bill in April.

There is medical disagreement on whether embryonic movement detectable by ultrasound constitutes a heartbeat.

The 5th Circuit last month allowed a Texas fetal heartbeat law to take effect as legal challenges make their way through the court system. That case could have triggered Idaho’s heartbeat law, but the court did not evaluate the Texas law’s constitutionality.

The Supreme Court also did not block the Texas law from going into effect nor rule on its constitutionality. That law contains an exception only for medical emergencies.

The Idaho legislature passed another law in 2021 prohibiting the use of public funds for abortions and banning Idaho government entities from contracting with abortion providers.

Idaho law currently allows physicians to perform an abortion in the first trimester after consulting with the patient and considering factors “including but not limited to” rape or incest, the patient’s age and well-being, the potential stigma of unwed motherhood, harm or stress upon the mental and physical health of the patient, the potential stress of an unwanted child, the emotional or psychological consequences of terminating the pregnancy, and the aid and assistance available to the pregnant patient.

The legislature passed an additional law in 2021 that removed physical and mental defects from that list of considerations, and added information on Down Syndrome to the written materials that must be provided at least 24 hours before an abortion.

Members of the legislature disagree on whether these various measures go far enough. Some believe that abortion should be outlawed across the board, no exceptions

Legislative leadership has indicated they do not plan to reconvene the legislature or call for a special session this year to pass additional abortion legislation.

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