Idaho’s abortion law puts medical expertise, prosecutorial discretion on collision course
By Melissa Davlin, Idaho Reports
Idaho’s trigger law, set to take effect 30 days after the Supreme Court’s decision on Dobbs v Jackson Women’s Health is finalized, will criminalize abortions except in cases of reported rape, incest, or the life of the mother.
That last exemption in particular could present difficulties for both doctors and prosecutors. Medical expertise and prosecutorial discretion could collide if someone brings a complaint questioning whether a patient’s life was truly at risk.
The way the statute is currently written, any person performing an abortion in Idaho can be charged with a felony, punishable by two to five years in prison, as well as a suspension or revocation of their medical license. Patients wouldn’t be prosecuted for seeking an abortion.
The statute includes a built-in defense if the physician “determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman.”
The statute goes on to say that self-harm or risk of suicide are not included in the exemption, and the physician must do everything they can to save the life of the unborn child.
The statute says the necessity of the procedure “must be proven by a preponderance of the evidence.”
That’s where things get tricky, said Twin Falls County Prosecutor Grant Loebs, president of the Idaho Prosecuting Attorneys Association. It’s possible medical professionals will disagree over whether an abortion was necessary to save a patient’s life. Is it enough to say a woman would likely die, or had a good chance of dying? Must her death be imminent?
“At that point, we will have potential battles of the experts, and like with anything that is based upon medical determination, it’s possible to have experts reach different conclusions,” Loebs told Idaho Reports in a Friday interview.
As it is now, prosecutors and law enforcement won’t automatically know if a doctor performed an abortion after the law goes into effect. Rather, someone would have to make a complaint that a physician performed an illegal abortion in Idaho. Depending on what facts are claimed, that complaint could trigger an investigation, which may or may not result in charges.
At every stage, law enforcement officials and prosecutors have discretion on whether to move forward, Loebs said.
“If the clinic down the street just sets up and does business as usual without any regard to the new statute, that’s one thing,” he said. “If we get an isolated case here and there where the doctor comes in and says ‘Here’s what I did and here’s why it was needed,’ that’s another thing.”
Because physicians must present a “preponderance of evidence” for the built-in defense to apply, Loebs said documentation is critical.
“The doctors who assist women with these procedures when their life is in danger or when there’s a potential for life in danger are going to have to make careful notes and make careful findings, and maybe collaborate with other physicians to make sure they’re making a decision they can justify,” Loebs said.
Patient privacy adds another layer of nuance. HIPAA doesn’t apply to criminal investigations, but it isn’t yet clear at what point fact-finding becomes a criminal investigation, he said.
“It isn’t obviously a criminal investigation until and unless the doctor’s use of abortion in treating a pregnant woman becomes a crime, and that’s all going to be up to the analysis that we need to go through and that the doctor needs to go through to determine if it’s legal or not.”
The Idaho Academy of Family Physicians has already expressed concern about how the trigger law language will affect medical professionals. Planned Parenthood operates clinics in two counties – Ada and Twin Falls – but other medical providers across the state may also perform abortions in the course of their work. In a Friday afternoon media call, Planned Parenthood’s Idaho director Mistie DelliCarpini-Tollman said the organization will continue to provide abortions in Idaho until the law goes into effect.
“Idaho’s trigger law will force clinicians into untenable positions of facing potentially unlimited personal and professional liability if they provide care consistent with their best medical judgment, scientific evidence, and moral and ethical duty,” IAFP executive director Liz Woodruff told Idaho Reports in a Friday email. “Governmental intrusion into the patient-physician relationship violates the core principles governing the practice of medicine and endangers the lives and well-being of women of reproductive age.”
The Idaho Prosecuting Attorneys Association hasn’t yet discussed the law, Loebs said. The organization’s next meeting is in August. “I’m sure there will be some discussions there,” he said. He also added the Idaho Legislature may revisit the law’s wording to clarify some of the provisions. House State Affairs Committee chairman Rep. Brent Crane, R-Nampa, has already indicated lawmakers will continue examining laws affecting reproductive care, telling Idaho Reports in May that he would consider legislation on Plan B and mail-order pills that induce abortions.
As the state figures out its post-Roe reality, “it’s going to be sticky,” Loebs said. “There’s no question, in my view.”
This story has been corrected to clarify that the law will go into effect 30 days after the final judgment, not 30 days after the initial opinion. As first reported by the Idaho Statesman, the decision released June 24 is a “slip decision,” and is subject to edits before the court releases the final mandate.