No matter your position on whether abortion should be legal, Idaho’s existing law is broken.
Before the U.S. Supreme Court overruled Roe v. Wade, Idaho had enacted a trigger law that would become effective on that day. The intention was to outlaw abortion in nearly all cases, with narrow exceptions for cases of rape or incest.
But when the court issued its ruling and the bill went into effect, it soon became clear it would do much more than that — including making basic, lifesaving care for women without viable pregnancies a felony.
A bill introduced into the Idaho House has the possibility of fixing this problem, though it has so far not gotten a hearing in the House State Affairs Committee.
House Bill 342 is not a great bill for people who respect women’s reproductive rights. Indeed, in one respect it further restricts abortion rules: It narrows the ability for victims of rape and incest to obtain an abortion. Current law provides a blanket exception for them. The new law would allow them only to obtain an abortion in the first trimester.
But the bill does several important things that are vital.
It ensures that doctors won’t be prosecuted if they pursued a course of treatment necessary for a life-threatening condition. It also ensures that women who report rape or incest can quickly get access to a police report, a necessary step to access the rape and incest exceptions.
Most importantly, it defines the treatment of an ectopic pregnancy, a molar pregnancy or a miscarriage as outside of the category of abortion.
This is enormously important.
It’s a common falsehood, often still repeated by anti-abortion activists, that Idaho’s trigger law would not place doctors at risk of a felony for treating an ectopic pregnancy — a fairly common condition where an embryo embeds outside the uterus and is not viable but could cause the woman serious injury or death.
But it’s indisputably true that Idaho’s law does criminalize this procedure.
“During oral argument, the State conceded that the procedure necessary to terminate an ectopic pregnancy is a criminal act, given the broad definitions used in Idaho’s criminal abortion statute,” federal Judge B. Lynn Winmill noted in his ruling on the Biden administration’s challenge to the law.
It’s likely that those who wrote the trigger law did not intend this outcome, that it was just an effect of incompetence: They didn’t craft language that matched their intent.
But the fact is, the language they crafted did make providing such care a crime. The only reason that the ban is not in effect today is that Winmill’s ruling blocked it from taking effect in cases involving emergency care.
That ruling, which could be struck down or reversed at any time, is the only thing that prevents a doctor from being imprisoned for two to five years for treating an ectopic pregnancy in Idaho.
Idaho doctors have responded to this precarious legal situation by leaving the state, which has already triggered one hospital to announce that it will soon cease delivering babies.
Lawmakers can’t claim ignorance of this problem today. If they fail to advance House Bill 342, their moral culpability will extend much further.
A court has already ruled that it would be criminal to treat an ectopic pregnancy under Idaho law.
Lawmakers have a bill that would fix that problem by specifically exempting ectopic pregnancy care.
If they don’t fix this glaring issue, even though they’re aware of it, then this is no longer simply an act of gross incompetence but one of knowing, intentional cruelty.
The Idaho Republican Party, whose chair Dorothy Moon has been sending out emails urging lawmakers to oppose the bill, has embraced this kind of intentional cruelty. The question for lawmakers — and particularly House State Affairs Chairman Brent Crane, who decides whether the bill gets a hearing — is whether they want to do the same.
If they do, make no mistake, women will die.
