By Ruth Brown, Idaho Reports
The Idaho Supreme Court heard arguments Wednesday on abortion legislation that plaintiffs argue creates confusion for providers and endangers women.
Arguments revolved around the constitutionality of the legislation, rights to privacy and vagueness in the new laws.
The court will consider whether it should consolidate the abortion cases, as well as if it should stay the laws while under consideration or remand them to district court. It did not make an immediate decision Wednesday morning, nor did it consider whether the laws should be overturned.
Attorney Alan Schoenfeld argued on behalf of the plaintiffs, which include Planned Parenthood. Schoenfeld asked the court to continue the stay on Idaho’s so-called “Heartbeat Act” as well as implement a stay on Idaho’s trigger law, SB 1385, that passed in 2020. The trigger law criminalizes all abortion, with few exceptions, following the overturning of landmark case Roe vs. Wade.
Deputy Attorney General Megan Larrondo argued on behalf of the state, asking the court to lift the stay. Larrondo maintained the bills are constitutional. Monte Neil Stewart represented the Idaho Legislature and outlined the lawmakers’ paramount goals to stop abortion in Idaho.
The trigger law is set to take effect on Aug. 25 and the Heartbeat Act will take effect Aug. 19 if the court lifts its stay.
The trigger law
Attorneys discussed at length the changes that could come if Idaho’s trigger law on abortion went into place, which would ban nearly all abortion.
The bill, which passed in 2020,includes exceptions for pregnancies resulting from rape and incest, but the rape or incest must be reported to police. Nationally and in Idaho, the majority of rapes go unreported to police.
The law would criminalize any medical professional who performs an unlawful abortion, making it a felony punishable by two to five years in prison.
Schoenfeld argued that the law was vague around under what circumstances a provider could perform an abortion to save a mother, saying the law “gives no indication on how imminent the death must be.” He argues that it defeats the state’s argument that the bill has an exemption for physicians.
Among other issues, Schoenfeld said the trigger law violates women’s rights to safe, comprehensive reproductive health care in Idaho, including abortion.
Justice Greg Moeller questioned him about the fact that Idaho’s Constiution does not specifically say women have the right to an abortion.
Schoenfeld argued that the constitution does grant a right to decisional autonomy, privacy and a right to procreation, among other individual rights. Other states have recognized those rights as reasons for the right to an abortion.
Larrando argued that the law does grant an exemption for physicians, saying “in his good faith medical judgment and based on the facts known to the physician at the time” an abortion may be conducted.
Discussion around these facts at which point a physician must intervene is another reason Moeller questioned Schoenfeld on whether the cases should be referred to the district court to hear evidence and testimony from professionals. Schoenfeld disagreed, saying the Supreme Court should rule on the requests.
The state asked that the court allow the implentation of the trigger law, repeatedly arguing that there is no constitutional right to an abortion in the Idaho Constitution and it’s not what founders intended.
Should the law take effect, nearly abortions would be illegal in Idaho, as of Aug. 25.
The Heartbeat Act
Planned Parenthood has also challenged the bill that passed in 2022 regarding civil enforcement around an abortion ban.
Senate Bill 1309 and companion legislation SB 1356 would allow family members of a fetus to sue abortion providers. That could include cases where the pregnancy resulted from rape, excluding the father of the fetus but including his family. When Gov. Brad Little signed SB 1309 and SB 1358, his transmittal letter criticized the bills and questioned their constitutionality.
The civil litigation option added to a bill the Legislature passed in 2021. The so-called “Fetal Heartbeat Preborn Child Protection Act” effectively bans any abortion after six weeks of pregnancy, with rare exceptions.
Justice Robyn Brody repeatedly questioned attorneys about whether the trigger law would essentially make the Heartbeat Act void. The trigger law bans all abortion, while the Heartbeat Act would allow it up until six weeks of pregnancy. Brody argued it created two different criminal statutes “that seem to provide two very different statutory schemes for medical providers and I don’t know which one it is and I don’t know how it works.”
Moeller asked Stewart about the Legislature’s priorities because Stewart focused on the Heartbeat Act in his remarks.
SB 1309 “was an effort to work around Roe v Wade, by having non-state actors enforce abortion prohibition,” but now that the decision has been reversed, why isn’t the trigger law the Legislature’s priority, Moeller asked Stewart.
Stewart argued that the Legislature’s priority was to get the Heartbeat Act legislation into place, saying the laws are valid now that Roe v. Wade and Planned Parenthood v. Casey decisions have been overturned.
“The stay is perpetuating in Idaho the Roe-Casey regime,” Stewart said. “As of June 24, (it) was stripped of all legitimacy. …Because of that stay, preborn children are being killed in Idaho contrary to duly enacted and wholly valid statutes.”
The Idaho Supreme Court did not rule on the arguments Wednesday, but will issue a written opinion at a later date.
A small group of pro-choice protesters gathered outside the courthouse as justices heard arguments around the constitutionality of restricting abortion access in Idaho. Two Democratic legislators, Sen. Melissa Wintrow and Rep. Ilana Rubel, sat in the courtroom Wednesday during arguments.
After court, Rubel told Idaho Reports she was concerned about the Legislature’s intent moving forward.
“I’m terribly concerned that any of these laws will move forward. I think they will gravely endanger the health and lives of the women of Idaho,” Rubel said. “And of course our Legislature is chomping at the bit to come in with even more egregious assaults on women’s autonomy. We know they’re gonna come in and try to ban women from even leaving the state to get health saving and potentially life-saving care.”
On Tuesday, the U.S. Department of Justice filed an unrelated lawsuit, challenging Idaho’s trigger law as conflicting with federal law. The DOJ cites the Emergency Medical Treatment and Labor Act, or EMTALA. Under EMTALA, DOJ claims all hospitals that receive Medicare must provide life-saving treatment to any patient, even if that treatment is abortion, and Idaho’s trigger law could violate federal law.
During a Tuesday press conference, U.S. Attorney General Merrick Garland cited examples such as a miscarriage that threatens septic infection or hemorrhage, or severe preeclampsia. In those cases, health care providers may need to conduct an abortion to save the life of the woman.
Gov. Brad Little called the lawsuit from the DOJ as “federal meddling.”
That lawsuit is pending in federal court.
In the meantime…
In an interview with Idaho Reports on Tuesday, Little said he is concerned that the legislation could jeopardize doctors.
“In a state with the least amount of doctors, particularly pediatric doctors in rural areas, we have got make certain that (there aren’t) unintended consequences because I’m pro-life, and that includes the life of the mother,” Little said. “I’m very concerned about it if we have an exodus of good, trained pediatric physicians.”
Moving forward, it’s unclear if the number of abortions will decrease or if more women will travel out of state for the procedure, but before the overturn of Roe v Wade, many Idaho women already traveled out of state for abortions, particularly if they didn’t live near one of the state’s two southern counties that had abortion clinics.
In 2020, the Bureau of Vital Records and Health Statistics reported 2,007 Idaho residents had an induced abortion. Of those, 1,574 of the abortions occurred in Idaho, while 433 occured in others states. Clinics in Washington provided 359 abortions to Idaho residents in 2020, while the rest occurred in other states.
In March, Washington’s Democratic Gov. Jay Inslee vowed that his state will continue protect Idaho residents’ access to abortion when signing a bill that updated Washington’s commitment to abortion access.
The Oregon Legislature approved $15 million allocated to helping community-based organizations expand access to abortion across the state, according to OPB.
“Abortion is health care, and no matter who you are or where you come from, Oregon doesn’t turn away anyone seeking health care. Period,” Oregon Gov. Kate Brown said in a written statement to OPB.
But earlier this summer, the Idaho Republican Party updated its platform to announcing its support to abolish abortion in the state. The platform is not law, but it can be indicative of laws that lawmakers may introduce during the next legislative session. At the Idaho GOP Convention in June, the GOP delegates agreed to a platform that criminalizes abortion as “murder” and provides no exemptions for the life of the mother nor for pregnancies resulting from rape or incest. The platform states “We affirm that abortion is murder from the moment of fertilization.”
To see the full hearing see the attached video below, courtesy of Idaho in Session.