By Ruth Brown, Idaho Reports 

Fourth Judicial District Judge Jason Scott heard arguments Thursday in a case revolving around medical abortions and potential restrictions the state has put on physicians.  

The complaint filed in September names four women who couldn’t get medical abortions in the state, two Idaho physicians and the Idaho Academy of Family Physicians. The lawsuit comes from the Center for Reproductive Rights, and the women named in it had wanted their pregnancies but faced serious medical complications. 

The Idaho Attorney General’s Office filed a motion to dismiss the case. Deputy Attorney General James Craig said flatly that the plaintiffs were discussing hypothetical situations that physicians could face, and hypothetical facts.  

Craig said the Idaho Supreme Court made clear in an earlier case brought by Planned Parenthood there is no constitutional right to an abortion in Idaho.  

Additionally, Craig’s memorandum said there is no exception to allow for an abortion in situations in which the physician believes that the fetus is unlikely to survive after birth. It notes the legislature has made a policy decision “fully within its constitutional authority to prefer, by all legal means, live childbirth over abortion, even in cases in which a physician believes that the child will die shortly after birth.”  

“In this case, they are not entitled to relief,” Craig said. “The court should just dismiss the claim in its entirety.” 

All abortion is illegal in Idaho, with exceptions for life of the mother and reported rape and incest.  

The legislature declined to include exemptions for “health of the mother” or various conditions that jeopardize the health of a fetus or pregnant woman that the plaintiffs addressed.  

In 2023, the legislature did clarify that “the removal of a dead unborn child,” “the removal of an ectopic or molar pregnancy” or “treatment of a woman who is no longer pregnant” do not qualify as abortions under the law and are all legal for physicians to perform in Idaho. 

When initially filed, the plaintiffs’ lawsuit asked the court to determine “at a minimum, Idaho’s abortion bans do not preclude a physician from providing abortion care where, in the physician’s good faith judgment and in consultation with the pregnant person, a pregnant person has: a medical condition or complication of pregnancy that poses a risk of infection, bleeding, or otherwise makes continuing a pregnancy unsafe for the pregnant person; a medical condition that is exacerbated by pregnancy, cannot be effectively treated during pregnancy, or requires recurrent invasive intervention; and/or a fetal condition where the fetus is unlikely to survive the pregnancy and sustain life after birth.”  

Attorney for the plaintiffs Marc Hearron argued that the cases were not “hypothetical” and he represented real women and physicians. Hearron said he was not arguing that there was a constitutional right to an abortion, but that there are rights for pregnant Idahoans with emergent medical conditions. 

Hearron said there are physicians in Idaho who do not know whether they can offer assistance to their patients who need abortion care. 

“We are not asking the court to rewrite the statute,” Hearron said. “Only to declare what their rights are and what their practice’s rights are.” 

Craig disagreed with the allegation that doctors were afraid.  

“Doctors are called upon every day to make life and death decisions,” Craig said.  

Judge Scott interrupted, saying those decisions do not regularly threaten physicians with jail or prison, as Idaho’s abortion law does.  

Craig argued that as long as the physician is acting in good faith and using good faith medical judgment, physicians shouldn’t fear prison. He referred to the section of law that states terminating a pregnancy is allowed 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.” 

Aside from that exception, Idaho’s law states “Criminal abortion shall be a felony punishable by a sentence of imprisonment of no less than two years and no more than five years in prison. The professional license of any health care professional who performs or attempts to perform an abortion or who assists in performing or attempting to perform an abortion in violation of this subsection shall be suspended by the appropriate licensing board for a minimum of six months upon a first offense and shall be permanently revoked upon a subsequent offense.” 

Scott said he would issue a written opinion on the motion for dismissal, likely sometime next month.  

---