Q&A: Boise reporter answers questions on Idaho’s new near-total abortion ban

By Crystal Ligori (OPB) and Donald Orr (OPB)
Aug. 25, 2022 10:01 p.m.

While a federal judge blocked parts of Idaho’s new abortion law, the procedure is banned now in nearly all cases

Idaho’s near-total abortion ban goes into effect today, though a federal judge has ruled to temporarily block the part of the law that made even most emergency abortions legally questionable.

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The Idaho legislature passed an abortion trigger ban several years ago, which was set in motion following the U.S. Supreme Court’s overturning of Roe v. Wade. The law prohibits abortion in Idaho in nearly all cases, with exceptions for rape, incest, or to save a patient’s life. Opponents have objected to how the rape and incest exceptions are written because the law calls for them to be proven, which is nearly impossible. But the last exception puts the onus on health care providers to prove an abortion met the criteria or face potential arrest, which Idaho District Court Judge Lynn Winmill said could cloud the judgment of physicians concerned about the criminal repercussions of performing an abortion.

Earlier this month, the Biden Administration challenged the abortion ban in court under the federal Emergency Medical Treatment and Labor Act. On Monday, Winmill said there was an “absolute conflict” between Idaho’s abortion ban and federal law regulating emergency care.

James Dawson covers politics and government for Boise State Public Radio. He joined OPB’s “All Things Considered” host Crystal Ligori to unpack the judge’s ruling in that case, and what the legal status of abortion is for our neighbors in Idaho.

This interview has been edited for length and clarity.

Crystal Ligori: This was the first time the U.S. Justice Department challenged a state-level abortion ban. What was the basis of the federal government’s legal challenge against the Idaho law?

James Dawson: They’re basically saying that hospitals that take Medicare dollars are required under federal law to treat serious health conditions for someone who shows up at the emergency room. And that, the federal government argues, can include abortions. So they were saying that Idaho’s law essentially conflicted with that, since any sort of doctor who would perform an abortion [in Idaho] would have to go to courts to prove — in their best medical judgment — that they thought the abortion that they performed was legal under one of three fairly narrow exceptions under the Idaho law.

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Ligori: Can you talk us through the judge’s ruling?

Dawson: It’s actually fairly narrow. So it still is mostly in effect. Essentially the judge carved out these sort of emergency abortions. So if you had, for example, an ectopic pregnancy, which is when a fetus develops outside the womb, that could be treated with an abortion.

Ligori: Just to clarify, this doesn’t mean that abortion is legal again, right?

Dawson: Yeah, that’s correct. So just in these narrow circumstances, if you have an emergency situation where you need an abortion to protect the life of the mother or save her life. Or if the pregnancy resulted from rape or incest — though advocates have strongly pushed back against that one, since you would need to file a police report to “prove” that it was resulting from a rape or an incident of incest. But those reports aren’t actually publicly available until investigations are completed, which can take months or years.

Ligori: Is the legislature likely to try and clarify this bill in the next session?

Dawson: It’s unclear. They could — I’m sure Democrats will be pushing for that, if not a full repeal of that ban. But we got a statement from House Republicans earlier this week, saying that they plan to appeal this and use every legal avenue necessary to try to get this ban back in full effect.

Ligori: We know that Planned Parenthood has also challenged this law, and another Texas-style abortion ban in state court. What’s the status of those lawsuits?

Dawson: Right, so those are still kind of winding their way through the system. Planned Parenthood had asked for the Idaho Supreme court to block enforcement of these bans, but they declined to do so earlier this month. So the next oral argument hearing is set for September 29th in those cases.

Ligori: What have you been hearing from doctors, clinics and hospitals about whether they feel comfortable performing abortions in Idaho?

Dawson: I mean, it’s still kind of early days, right? This just went into effect this week, and the judge’s ruling came down Wednesday. Beforehand, there were several doctors who filed these sort of statements with the federal court prior to the ruling saying, ‘Yeah, they were not gonna feel comfortable doing so.’ Which is partially what Judge Lynn Winmill used in his decision saying, the exception to save the life of the mother was essentially no exception at all. Since always in the back of their mind, physicians would be thinking about what kind of criminal repercussions they could face for every abortion they performed.

James Dawson covers politics for Boise State Public Radio News.

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