BOISE – The Idaho Senate overwhelmingly approved a bill banning abortions after 20 weeks of pregnancy on grounds of fetal pain, despite a state attorney general’s opinion warning that the bill is likely unconstitutional.
Senate Bill 1165 makes no exceptions for cases of rape, incest, or severe fetal abnormalities, nor would it permit consideration of the mother’s mental or psychological health. It would allow abortions after 20 weeks only to save the mother’s life or physical health.
“So here we go again, folks, we’re passing legislation that we know is unconstitutional,” warned state Sen. Joyce Broadsword, R-Sagle, who opposed the measure. “We’re putting good money after bad.”
Idaho spent nearly three-quarters of a million dollars defending unconstitutional anti-abortion legislation its Legislature passed in the 1990s, including $380,000 in attorney fees the state was ordered to pay in 2007 to Planned Parenthood of Idaho after that group challenged unconstitutional provisions in a 2005 abortion parental consent law.
State Sen. Chuck Winder, R-Meridian, said he thought the bill was “worthy of our consideration during a very stressful legislative session,” because of new, though disputed, scientific information regarding when a fetus feels pain.
Since the landmark 1973 Roe v. Wade decision by the U.S. Supreme Court, states have been banned from restricting abortion prior to the point that the fetus is considered viable, or able to survive outside the womb, though courts have been increasingly open to certain types of restrictions. The 20-week bill departs from that viability standard, which generally doesn’t permit state bans on abortion before roughly 24 weeks, though viability is determined on a case-by-case basis. In a committee hearing on the bill, doctors testified that no provider in Idaho offers abortions beyond the 16th week.
State Sen. Sheryl Nuxoll, R-Cottonwood, told the Senate that “our contention … is that this would be upheld by the Supreme Court if it came to that point” because U.S. Supreme Court Justice Anthony Kennedy has cited fetal pain issues in his writing on abortion. “It just seems like there’s a very great chance, with Kennedy being the deciding vote on the Supreme Court,” she said.
Sen. Michelle Stennett, D-Ketchum, spoke against the bill, citing cases of serious fetal abnormalities. “These are fetal conditions that are incompatible with life outside of the womb after birth. This bill would not allow the parents to have a choice, but would require the mother to go through a painful birth, because natural vaginal birth is painful, only to watch the baby die,” she said. In those cases, the pregnant woman would be forced to carry the pregnancy to term rather than have an abortion or induce early labor after 20 weeks.
Stennett also noted that the bill would give a rapist standing to sue a doctor over a post-20 weeks abortion; it permits such legal action by the biological father of the fetus, without restriction.
Both Winder and Nuxoll said the issue of rapists probably wouldn’t arise because most pregnancies that are a result of rape are detected before 20 weeks. “Usually in rape they check the woman right away,” Nuxoll told the Senate.
Sen. Elliot Werk, D-Boise, told the Senate, “I can’t believe what I’m hearing on the floor today, that we are willing to provide a legal remedy to rapists because we don’t think it’ll be such an issue.” He declared, “I heap my scorn on this bill.”
Sen. Dan Schmidt, D-Moscow, a doctor, said, “We are discussing a bill that potentially could make many doctors in this state felons unknowingly.” The way the bill is written, he said, it redefines gestational age to calculate it from the date of fertilization, and it defines inducing labor as an abortion. “In my opinion this is a fatal flaw for this bill,” said Schmidt, who noted that the Idaho Medical Association opposes it for that reason.
The measure now moves to the House.