SCOTUS may overturn Roe v. Wade, leaked draft opinion shows. What’s it mean for Idaho?
The U.S. Supreme Court appears poised to reverse landmark abortion cases, according to a Politico report published Monday night, which would trigger abortion bans in several states. So where would Idaho stand?
Politico’s article is based on a leaked draft opinion from the Supreme Court, which reportedly was written by Justice Samuel Alito. The leaked document shows the court voting in a majority to overturn two key abortion rights cases: 1973’s Roe v. Wade and 1992’s Planned Parenthood v. Casey. The cases established a right to choose abortion, as well as a time frame for legal abortion and parameters for restrictions on the procedure.
If the court follows through with an official opinion, expected in June, abortion decisions would be left to individual states, many of which have laws already on the books that would outlaw all abortions. Idaho is among them.
Idaho’s trigger law
Idaho has a trigger law that would effectively ban all abortions if the Supreme Court upholds the leaked decision in the Dobbs v. Jackson Women’s Health Organization case. Idaho code 18-622 would be “triggered” if states regain the authority to prohibit abortions.
The law would make it a felony for any health care provider to perform or attempt to perform an abortion. A violation would carry a prison sentence of two to five years, and health care professionals would have their licenses suspended for six months on a first offense and revoked permanently upon a subsequent offense. The license suspension also applies to providers who assist with an abortion.
The law makes an exception in the case of a pregnancy conceived through rape or incest — but it stipulates that the rape or incest must be reported to law enforcement and a proof of that report submitted to the abortion provider. According to statistics from the Idaho Coalition Against Sexual and Domestic Violence, only 25% of all rapes and sexual assaults in Idaho were reported to police in 2018, the most recent year data was available.
Women who are in danger of dying due to pregnancy are another potential exception, though the law says that does not apply in instances where a health care provider believes a woman might harm or kill herself.
The statute clarifies that women who undergo abortion procedures cannot be subjected to penalty or criminal conviction.
Idaho would be one of more than a dozen states to ban abortion with trigger laws. Utah and Wyoming would also outlaw the procedure. Several of Idaho’s neighboring states, including Oregon and Washington, have specifically enacted laws to preserve the legality of abortion.
Idaho’s own abortion debate continues
The Idaho Supreme Court is hearing an abortion case based on an Idaho law enacted in March that would allow certain family members to sue abortion providers. The law, which has been put on hold pending the court’s decision, would let each family member sue for at least $20,000 in instances where an abortion was performed after a fetal heartbeat — which medical professionals say is better described as electrical activity — is detected. That’s typically around six weeks of pregnancy, before many women are aware they’re pregnant, physicians say.
It was based on a Texas law that allows anyone to sue abortion providers for up to $10,000. That law is also being challenged in court, and a decision upholding it would trigger another Idaho statute that would criminalize abortions performed after a so-called heartbeat is detected. The complete ban on Idaho abortions would supersede the heartbeat restrictions.
In an opinion, the Idaho attorney general’s office said it believed Idaho’s civil remedy to be unconstitutional. Gov. Brad Little expressed similar doubts in his transmittal letter after signing the law in March. Shortly after Little signed the law, health care provider Planned Parenthood sued the state.
Planned Parenthood, which operates three of Idaho’s four abortion clinics, called the law “an unprecedented power grab by the Idaho Legislature” in its initial court filing. The organization argued that the law strips the executive branch of government of its enforcement powers and bestows that power instead to private citizens. It also said the law violates privacy rights guaranteed in the Idaho Constitution.
In April, the Legislature successfully joined the lawsuit with private representation, expressing concerns that the attorney general’s office would not “vigorously defend” its interests.
Last week, the AG’s office petitioned the Idaho Supreme Court to lift its stay on the implementation of the new law, arguing that neither Planned Parenthood nor the attorney general asked for the hold.
Idaho politicians react to leaked draft
Several Idaho politicians have issued statements in response to the leaked draft.
Officials with the Idaho Democratic Party decried the draft’s intent, with party chair Lauren Necochea acknowledging that it would trigger Idaho’s abortion ban.
“If this happens, the reproductive rights and fundamental freedoms of Idahoans will immediately be dismantled and stripped away,” Necochea said.
She said Roe v. Wade has been the sole provision upholding abortion access in Idaho and added that Idaho Democrats will continue to fight for access. The Idaho Democratic Caucus echoed Necochea’s sentiments.
Idaho Rep. Mike Simpson, a Republican, said the leak is “a serious attempt to hijack a trusted institution” and called for the person who leaked the information to be held responsible.
Simpson also commented on abortion, saying, “My thoughts on the issue have always been clear: The rights of infants, mothers, and health care providers who oppose abortion must be protected. I have long fought for pro-life legislation in Congress, and I will continue to do so, regardless of the destructive attempts to undermine and intimidate those who disagree.”
This story was originally published May 3, 2022 at 9:48 AM.
