Idaho Senate committee advances bill that would change legal definition of abortion

Committee did not advance bill that sought to remove rape, incest defenses from abortion ban

By: - January 16, 2023 10:34 am
Idaho Capitol rotunda

The Senate State Affairs Committee voted to introduce one of two abortion-related bills sponsored by Sen. Scott Herndon, R-Sandpoint, that would change Idaho’s legal definition of abortion in what Herndon said was an attempt to address concerns from medical professionals around ectopic pregnancies and other certain medical circumstances. (Otto Kitsinger for the Idaho Capital Sun)

The Senate State Affairs Committee voted to introduce one of two abortion-related bills sponsored by Sen. Scott Herndon, R-Sagle, that would change Idaho’s legal definition of abortion in what Herndon said was an attempt to address concerns from medical professionals around ectopic pregnancies and other certain medical circumstances.

Herndon’s bill to remove the rape and incest affirmative defenses under the state’s abortion ban failed to advance to a print hearing. 

Herndon told the committee Senate Bill 1002 would change the legal definition of abortion from the intentional termination of a pregnancy to the “intentional killing of a living human embryo or fetus in utero.” In a newsletter sent to his subscribers in late December, Herndon wrote that the bill would make the law clearer and refute arguments from opponents who say anti-abortion activists “want pregnant women to die in medical emergencies.”

Sen. Scott Herndon
Sen. Scott Herndon, R-Sagle (Courtesy of the Idaho Legislature)

Herndon said the language also makes it clear that the abortion definition would not include the unintentional death of any embryo or fetus or any action occurring “after the natural death” of the embryo or fetus. Herndon said he was contacted by medical professionals after Idaho’s abortion ban went into effect who were concerned about handling ectopic pregnancies, which occur when an embryo implants outside of the uterus and is not viable.

“Ectopic pregnancy, by definition, is outside of the uterus so basically it offers clarity to our medical community that we are not talking about treatment in an ectopic pregnancy when we are talking about our criminal abortion ban,” Herndon said. “You have to have intent, used with malice of forethought, and the fetus has to be living.”

The change would ensure health care professionals would not face prosecution or other legal consequences for handling certain common complications during pregnancy, Herndon said. It would clarify that the Legislature’s interest is in the living child, he said.

“I have run this by several in our medical community, this language has been reviewed by a number of pro-life physicians, obstetricians and gynecologists and they agree that this offers some clarity for them as to legitimate medical practice,” Herndon said.

The new language would actually be closer to the definitions that existed in the late 1800s, when many states outlawed abortion, he said.

Sen. Ben Toews, R-Coeur d’Alene, said the bill is a “great solution to a real issue” and thanked Herndon for sponsoring it.

“I have doctors in our community that I know have expressed concern that they could be working to save the life of a mother and there could be an issue where they would feel like they were stuck between a rock and a hard place,” Toews said. “This type of legislation is what we need to address that situation.”

The two Democratic members of the committee, Sens. Melissa Wintrow, D-Boise, and James Ruchti, D-Pocatello, voted against introducing the bill, but the rest of the committee voted in favor. It could receive a committee hearing in the coming weeks of the session.


North Idaho senator: Removing rape and incest exceptions from ban is a civil rights issue 

Herndon’s second abortion-related bill sought to change Idaho’s abortion ban to allow an abortion to occur only in the scenario when the pregnant person’s life is in jeopardy based on a good faith medical judgment. The current law allows affirmative defenses in court for those who were victims of rape or incest and can produce a police report showing they reported the alleged incident.

The bill is in line with the Idaho Republican Party’s most recent adopted platform, which states that abortion is murder from the moment of fertilization and “all children should be protected regardless of the circumstances of conception, including persons conceived in rape and incest.”

Herndon said the legislation would provide equal protection under the law and recognize a constitutional right to life and compared it to the civil rights issues honored Monday for Martin Luther King Jr. Day.

“It’s kind of auspicious that today is Martin Luther King Jr. holiday, and he spent 13 years advancing the civil rights of people based on certain characteristics, and this does the same thing,” Herndon said.

Wintrow asked Herndon if the bill would force a hypothetical 13-year-old girl who was raped by a male family member to carry the child to term. Herndon said the state of Idaho has nothing to do with forcing anyone to carry a child and those are merely natural circumstances.

“Some people could describe the situation that you’re talking about as the opportunity to have a child in those terrible circumstances if the rape actually occurred,” Herndon told Wintrow. He told the story of a person in Montana who wrote a book about how her stepfather raped her and forced her to have an abortion the first time she was pregnant and the second time she had the child.

“That child that she actually had proved to be incredibly cathartic for her and a huge blessing in her life,” he said.

Ruchti motioned to return the bill to the sponsor rather than print it for a full hearing, and four other committee members who were present voted in favor of that motion. Toews was the only “no” vote, and three senators were missing with excused absences — Sens. Kelly Anthon, R-Burley;  Abby Lee, R-Fruitland; and President Pro Tem Chuck Winder, R-Boise.

Without a print hearing, the bill will not advance in the Senate.


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Kelcie Moseley-Morris
Kelcie Moseley-Morris

Kelcie Moseley-Morris is an award-winning journalist who has covered many topics across Idaho since 2011. She has a bachelor’s degree in journalism from the University of Idaho and a master’s degree in public administration from Boise State University. Moseley-Morris started her journalism career at the Moscow-Pullman Daily News, followed by the Lewiston Tribune and the Idaho Press.