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Idaho’s abortion laws must be rewritten

 
August 29, 2022

By Tom Arkoosh
Candidate for Idaho Attorney General

The Idaho Legislature must revamp its confusing abortion laws so that pregnant women and doctors know what medical care is permissible and what is not. The U.S. Supreme Court has turned the abortion issue over to lawmakers, so it is vitally important that our laws provide clarity. Otherwise, women could die or suffer grievous harm, and doctors could go to prison for providing life-saving care.

Idaho currently has three laws on the books:
  1) A total abortion ban that makes it a felony, with a mandatory minimum prison sentence of two years, for anyone to perform an abortion,
  2) A law prohibiting an abortion after detection of a fetal heartbeat and;
  3) A Texas-style bounty law that gives family members of the fetus (including a rapist’s relatives) the right to each recover a minimum of $20,000 from an abortion provider.

All of these laws were sloppily drafted, with little or no input from medical doctors. No attempt was made to reconcile federal legal requirements that doctors must provide emergency care to prevent serious harm to the woman. Now the Legislature must clean up the mess it created.

The Idaho Coalition for Safe Reproductive Health Care, a group of about 350 Idaho healthcare professionals, has recently organized to advocate for clear, understandable abortion laws. Undoubtedly the Legislature will continue to pass laws as restrictive as possible, but the laws should be much more precise. The Coalition correctly calls our laws “dangerously vague and excessively restrictive.”

As a first step, the state should accept the recent federal court injunction requiring an exception from the abortion ban to allow for protection of the woman’s health, as federal law mandates. This will assure doctors that they will not go to prison for saving a woman facing a life-threatening infection, paralysis, amputation or other health disasters.

Second, the bounty law should be repealed. Besides having numerous constitutional infirmities, it is now irrelevant as the total ban is in effect. The law was enacted to circumvent Roe v. Wade, which prevented an outright abortion ban. It was meant to intimidate doctors out of performing all abortions with the threat of having to pay potentially unlimited damages to relatives of the fetus.

The laws contain confusing and conflicting language, variously indicating that protectable life begins at “fertilization,” or upon detection of a “fetal heartbeat” or with a “clinically diagnosable pregnancy.” Under the heartbeat law, an abortion can be performed in a “medical emergency” but under the total ban only to “prevent the death of the pregnant woman.” This imprecision can result in unnecessary deaths given the severe penalties facing doctors if they guess wrong as to which legal standard applies.

Any replacement law should, at a minimum, allow for abortion when the pregnant woman is facing severe health damage or risk of death if forced to continue the pregnancy. This is required not only by standards of decency, but also by federal law. Idaho will only keep paying for losing lawsuits as long as it refuses to protect women’s health. Instead of intimidating doctors with severe criminal penalties, the law should set out a reasonable standard of care for doctors to follow.

The Idaho Supreme Court currently has the three laws under consideration and will likely provide additional guidance for the Legislature before the 2023 session. As the newly-elected Attorney General, I would make every effort to assist in drafting clear and reasonable language that respects the doctor-patient relationship. In contrast, my opponent, Raul Labrador, has expressed strong support for these laws as currently and sloppily written.

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9B.News
Mike Weland, Publisher
mike@9b.news  

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