In this 2021 file photo, demonstrators gather outside the U.S. Supreme Court as justices hear arguments in a Mississippi case that seeks to overturn Roe v. Wade. (Jane Norman/States Newsroom)
If the U.S. Supreme Court overturns its 1973 Roe v. Wade ruling, abortion would be criminalized as a felony in Idaho 30 days after a court ruling is handed down.
Following Politico’s publication last week of a leaked draft opinion by Justice Samuel Alito, political observers on all sides of the abortion debate are bracing for Idaho’s so-called trigger law to take effect.
But at least one anti-abortion group, the Idaho Family Policy Center, will push to move beyond what’s already in Idaho Code by advocating for a bill in the Idaho Legislature that would classify abortion as homicide or murder and remove exemptions for rape and incest.
In 2020, the Idaho Legislature passed Senate Bill 1385, which would take effect 30 days after the issuance of a U.S. Supreme Court ruling that gives states the rights to regulate abortion. Idaho’s trigger law would make it a felony to perform an abortion or attempt to perform an abortion. Breaking that law would be punishable with a prison sentence of a minimum of two years for the medical professional who performs the abortion. A first offense would also result in the suspension of the medical provider’s professional license for six months, while a second offense would result in permanent revocation.
The only carve outs in Idaho’s law are to save a pregnant patient’s life and for rape and incest if the patient has previously reported the rape or incest to law enforcement and provided a copy of the report to the physician performing the abortion.
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Idaho groups respond to U.S. Supreme Court’s leaked draft opinion
Anti-abortion groups welcomed the draft opinion.
“We are excited for the the very real possibility that in less than a couple of months, abortion will be more or less unavailable in the state of Idaho,” Idaho Family Policy Center President Blaine Conzatti said in a telephone interview. “Because of that, thousands of babies will have a chance to live their lives.”
“This is what we’ve been expecting,” Conzatti added. “We’ve known for decades now that Roe v. Wade was bad constitutional law. The findings are not related in any way to the text or intent of the Constitution.”
David Adler, who has taught constitutional law at Idaho’s three public universities and had writings quoted by the U.S. Supreme Court, said if the court overturns Roe v. Wade, it would be reversing a landmark precedent and turning control and oversight of women’s reproductive health rights over to state governments.
“That would essentially eliminate a constitutional right to abortions for women,” Adler said. “It eviscerates a woman’s reproductive rights and, thus, turns the control over abortions back to each and every state. We already know many states have enacted trigger laws that would go into effect, Idaho included.”
Adler also pointed out the leaked opinion may or may not represent the U.S. Supreme Court’s final ruling. During the drafting process, Adler said it is often the case that drafts or even votes change as justices engage in horsetrading. For example, one justice may tell another justice they would join their opinion, but only if certain paragraphs were changed or removed.
“There is considerable negotiation among the justices, and there always has been,” Adler said.
Anti-abortion group hopes to pass law classifying abortion as murder in Idaho
While he supports Alito’s draft opinion and Idaho’s trigger law criminalizing abortion 30 days after a U.S. Supreme Court ruling, Conzatti said he will push for the Idaho Legislature to make more stringent laws surrounding abortion.
“Many states treat abortion as felony murder. Ours is a looser one,” Conzatti said. “That is an issue we are going to have to come back to. How do we tighten this up and ensure all life is equally protected in the state of Idaho?”
Conzatti said he supports calling a special session of the Idaho Legislature to address the issue. Because the Idaho Legislature adjourned earlier this year, only the governor has the authority to convene a special session. Lt. Gov. Janice McGeachin has called for Idaho Gov. Brad Little to convene a special session and for legislators to remove exceptions for rape, incest and protecting the pregnant person’s health if Roe v. Wade is overturned.
“If you believe that life begins at conception, there can be no exceptions that allow for ending that life,” McGeachin wrote on her campaign Facebook page Wednesday.
But aside from McGeachin’s call, Conzatti said he hasn’t heard much of a push for a special session so far.
“Everybody’s in campaign mode,” Conzatti said, referencing the upcoming May 17 primary elections.
Idaho has other abortion laws on the books and in the courts, but Conzatti said the trigger law would take precedence if Roe v. Wade is overturned.
Conzatti said he drafted Senate Bill 1309, the Texas-style law from this year’s legislative session that gives family members of a pregnant woman the right to sue if a medical professional performs an abortion after cardiac activity is detected. Little signed the bill into law March 23, and Planned Parenthood quickly filed a petition with the Idaho Supreme Court asking to block the law and declare it unconstitutional. The Idaho Supreme Court put a temporary stay in place blocking the bill from becoming effective in April while the legal case is sorted out.
Conzatti said he is not sure how legal cases will play out over the next few months, but he said Senate Bill 1309 would take a backseat to the trigger law criminalizing abortion if Roe v. Wade is overturned.
Conzatti also said the felony punishments from the trigger law are far more severe than a civil lawsuit from Senate Bill 1309.
“The way we wrote it is that the trigger law supersedes the heartbeat bill if both are made effective,” Conzatti said.
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Legislative committee chair expresses openness to banning emergency contraception
Conzatti will likely have many allies within the Idaho Legislature on the issue.
During the May 6 episode of the Idaho Public Television program “Idaho Reports,” Rep. Brent Crane, the chairman of the House State Affairs Committee, which is the legislative committee that considers abortion bills, said he would be open to holding a hearing on a bill to ban emergency contraception, Plan B, or intrauterine devices, or IUDs.
“Plan B, I probably would hear that legislation; IUDs I am not for certain yet where I would be on that particular issue,” Crane said.
In response to Crane, Rep. Lauren Necochea, D-Boise, said the trajectory among Republican policymakers is to continue pushing more and more extreme and invasive proposals. She also expressed disappointment with the Supreme Court’s draft ruling.
“I was devastated to hear this news,” Necochea said. “This is a right that we have had in place for all of our lifetimes … For these past five decades, Roe v. Wade has protected Idahoans regardless of what extreme unconstitutional laws were proposed or enacted in Idaho, and those protections now go away, and I think we face a grim reality.”
Planned Parenthood plans abortion rights rally Saturday in Boise
As the leaked draft opinion has ignited debate about abortion rights in the U.S., many groups have organized protests throughout the country in response – and Idaho is no different.
Officials with Planned Parenthood Alliance Advocates are planning a rally and march at 10:30 a.m. Saturday at the Idaho State Capitol in Boise.
Organizers and abortion rights advocates say they are expecting the U.S. Supreme Court to overturn Roe v. Wade, which has guaranteed a right to an abortion for 50 years.
“Saturday’s rally is part of a national day of action to send a clear and loud message to politicians who want to control our bodies and our lives: bans off our bodies,” organizers of Saturday’s rally said in a press release.
Previous Idaho abortion bills made national news
This isn’t the first time abortion debates have become such central and pressing issues in Idaho and across the country. In 1990, the Idaho Legislature passed House Bill 625, which a 1990 article in the New York Times called “the most restrictive abortion law of any state.”
The bill would have outlawed abortion except in cases of rape that were reported to law enforcement within seven days and cases of incest involving a victim under age 18, or in cases when the mother’s health was threatened.
Republicans and national anti-abortion groups, including the National Right to Life Committee, drafted House Bill 625 hoping it would become a test case to get Roe V. Wade back in front of the U.S. Supreme Court, said Marc C. Johnson, a longtime top aide to former Idaho Gov. Cecil Andrus.
“It was a very intense and tense time where advocates on both sides of the issue were mobilizing in force,” Johnson said.
Andrus was personally anti-abortion, and believed abortion was only acceptable in cases of rape and increase and when the pregnant woman’s life was threatened, Johnson said.
But Andrus vetoed the bill in the face of national attention.
In a press conference announcing the veto, Andrus said the bill’s restrictions “failed the test of reasonableness and compassion” after noting that a rape victim would violate the abortion law if they didn’t report the rape within the first seven days.
“This law would force the woman to compound the tragedy of rape,” Andrus said in his announcement, which was broadcast nationally by C-SPAN.
In his veto statement, Andrus railed against the bill’s sponsors for working with national groups, outside of Idaho, who Andrus said pushed the bill for the sole purpose of getting an abortion case back before the U.S. Supreme Court.
“I believe and I am confident that the people of Idaho believe that we can make our own judgments on this terribly important issue without outside pressure, outside influence and threats,” Andrus said.
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