BOISE – A Senate panel on Tuesday advanced a measure that would outlaw nearly all abortions in conservative Idaho by banning them once a fetal heartbeat can be detected.
The legislation makes providing an abortion to a woman whose embryo has detectable cardiac activity punishable by up to five years in prison, and it would allow the woman who receives the abortion to sue the provider.
After passing the Republican-led Senate State Affairs Committee, the measure now goes to the full Senate and has already cleared the House.
It contains a “trigger provision,” which means it wouldn’t go into effect unless a federal appeals court somewhere in the country upholds similar legislation from another state. Similar bills have been passed in several other states, and some are already being litigated. Earlier this year, a federal court temporarily blocked a fetal heartbeat bill in South Carolina.
Idaho’s measure allows abortions in the case of rape, incest or a medical emergency. Fetal cardiac activity can be detected as early as six weeks using an invasive vaginal ultrasound – before many women discover they are pregnant.
What passed was a revised version that eliminates what supporters said was an inadvertent wording error that could have led to the prosecution of health care providers for performing any abortion.
Opponents of the bill said Tuesday that the exceptions of rape, incest and medical emergency are so vague or difficult to meet that they would often prevent abortions in those situations.
“It places physicians in an impossible position between the law and providing evidence-based, individualized and medically necessary care to their patients,” said Lauren Bramwell of the American Civil Liberties Union of Idaho.
The exception for rape and incest would likely be impossible for many women to meet, opponents say, because Idaho law prevents the release of police reports in active investigations.
Opponents also say many rape victims don’t want to report the crimes to law enforcement right away, and even if they do, the reports are often sealed for three months or more. They say forcing women to immediately report their rape and then fight to get a copy of the report quickly enough for any abortion would deeply compound the trauma they have experienced.
It’s the third version of the measure. Most bills go through simple wording changes on the House or Senate floors. But abortion legislation draws so many amendments from lawmakers that they are typically discarded if a problem is discovered and a new bill brought forward to avoid the amending process.
The first version of the bill contained wording protecting health care providers when performing abortions in cases of rape, incest or medical emergency. That wording was changed in the second version to allow for prosecuting providers for performing any abortion.
The Senate approved the second version and sent it to the House, where that wording was brought to light.
“Obviously, we do not intend for doctors to be exposed to either criminal or civil liability for performing an abortion the way they’re supposed to perform it,” Brian Conzatti of the Family Policy Alliance of Idaho told lawmakers.
Supporters of the legislation say they would like it challenged in the 9th U.S. Circuit Court of Appeals and then decided at the U.S. Supreme Court, which has a 6-3 conservative majority after former President Donald Trump appointed three conservative justices.
Ultimately, backers would like to see the proposed Idaho law play a role in overturning Roe v. Wade, the 1973 Supreme Court decision legalizing abortion nationwide. A reversal of Roe would mean abortion policy would revert to the states.
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