On Thursday afternoon, January 05, the Idaho Supreme Court held that there is nothing in the Idaho Constitution that protects a right to abortion. Because no such right exists, the Idaho legislature may regulate it by passing laws prohibiting or limiting abortion. Specifically, the Idaho Supreme Court ruled that the statute making it a felony for anyone to perform, attempt to perform or assist with an abortion was constitutional.
This is a total abortion ban. It does not have any exceptions, such as to save the life of a mother or a pregnancy that resulted from rape or incest.
In place of the exceptions, the law provides grounds for a justified abortion. A justified abortion occurs when: (1) “[t]he physician determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman”; and (2) in the case of rape or incest, prior to the abortion, the woman provided the physician with a copy of her report of rape or incest to law enforcement.
The Idaho Supreme Court stated that “[t]he allowance of a defense based on the subjective ‘good faith medical judgment’ of the physician, coupled with the inclusion of rape and incest defenses, actually provides physicians with greater protections than the pre-Roe laws.”
The Idaho Supreme Court also ruled that the Fetal Heart Beat Act was constitutional. This act makes it a felony to perform an abortion on a woman when a fetal heart beat is detected but exempts criminal prosecution in the event of an emergency, rape or incest. It also allowed for civil lawsuits to be brought against any person to performed an abortion by the woman who had the abortion, fathers, grandparents, siblings, aunts and uncles of the preborn child. It also adds statutory minimum damages of $20,000.
The total abortion ban may not be enforced due a federal court injunction. The injunction states that no person may be prosecuted and civil liability may not be imposed for abortions are necessary to avoid: (1) “ ‘placing the health of’ ” a pregnant patient ‘in serious jeopardy’ ”; (2) “ ‘serious impairment to bodily functions’ of the pregnant patient”; or (3) “ ‘serious dysfunction of any bodily organ or part’ of the pregnant patient,” pursuant to 42 U.S.C. § 1395dd(e)(1)(A)(i)– (iii).
Though the total abortion ban has stayed, physicians and health care centers should take all necessary steps to avoid violating the total abortion ban or the Fetal Heart Beat Act. Though there is still a legal challenge in federal court, the Idaho Supreme Court has ruled that abortion bans are legal under the Idaho Constitution.
If you have any questions about this ruling or Idaho law on the topic of abortions, please reach out to one of our healthcare attorneys. We are happy to explain what this decision means for you.
The Malek + Malek Healthcare Practice Team
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