BOISE – Legislation outlawing nearly all abortions in conservative Idaho by banning them once a fetal heartbeat can be detected headed to Republican Gov. Brad Little on Wednesday.
The Republican-dominated Senate voted 25-7 to approve the measure that makes providing an abortion to a woman whose embryo has detectible cardiac activity punishable by up to five years in prison. It would also allow the woman who receives the abortion to sue the provider.
Fetal cardiac activity can be detected as early as six weeks using an invasive vaginal ultrasound – before many women discover they are pregnant.
“This is good legislation that gives a preborn child the same rights as a mother,” said the bill’s sponsor, Republican Sen. Patti Anne Lodge.
The bill has exceptions for rape, incest or medical emergency. The exception for rape and incest would likely be impossible for many women to meet, opponents said, because Idaho law prevents the release of police reports in active investigations.
Opponents also said 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 already experienced.
And the medical emergency provision, opponents said, is so vague as to likely be of little help to medical professionals.
Beyond that, Democratic Sen. Melissa Wintrow said, “This still is an attempt to restrict women’s liberty to access a safe and legal abortion.”
The bill 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.
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.
The bill that passed the Senate on Wednesday was 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, the bill scrapped and a new version written that is now headed to the governor.
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