Sarah A. Miller/Idaho Statesman via AP
People demonstrate outside the Idaho statehouse at Planned Parenthood’s Bans Off Our Bodies rally for abortion rights, May 14, 2022, in downtown Boise, Idaho.
Perennial foot soldiers in America’s war on women, Idaho’s Republican state legislators outdid themselves in trying to devise the perfect abortion crime. The so-called “abortion trafficking” measure that Republican Gov. Brad Little signed Wednesday is a collection of legal contortions designed to create a new class of travel restrictions for minors seeking to terminate pregnancies, provide dubious culture-war bragging rights to its authors, and stand up to the inevitable constitutional headwinds. Even more impressive was the legislature’s massive fail in not anticipating the fallout from creating a risky legal environment for the medical professionals forced to navigate these laws.
Under the new law, an adult who assists a minor in obtaining an abortion or medication abortion out of state without parental consent by “recruiting, harboring, or transporting” that person within the state is subject to prosecution. The felony carries a prison sentence of two to five years.
To checkmate maverick prosecutors who might refuse to prosecute these cases, lawmakers gave the state attorney general “sole discretion” to step in and proceed with prosecution. If an abortion has been performed, the bill would allow certain relatives as well as the father to pursue civil damages against the medical professionals who perform the procedure.
Criminalizing intrastate movements for young people trying to obtain an out-of-state abortion was the next best thing to trying to take on the right to interstate travel. High-court reviews of the constitutionality of travel prohibitions may be years off, but Idaho policymakers had to wrestle with Justice Brett Kavanaugh’s concurring opinion in Dobbs v. Jackson. In sending abortion questions back to the states, Kavanaugh made all the noises that one might expect from a far-right conservative jurist, but supported women’s right to travel out of state for an abortion: “[M]ay a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”
Forced into this murky uncharted territory, Oregon and Washington are gearing up for cross-border legal skirmishes. Pending Oregon legislation would expand access to abortion and gender-affirming procedures by establishing a mobile health clinic pilot program that would provide general and reproductive health services, including abortion, in rural areas that Idaho residents could potentially access by crossing over into Oregon. The bill also addresses “choice of law” questions: In interstate disputes in Oregon courts over reproductive health care and gender-affirming care issues, state law prevails.
Additional provisions would restrict the ability of Idaho parties pursuing criminal or civil cases who seek health care provider information in Oregon by prohibiting an Oregon court from enforcing a subpoena related to reproductive or gender-affirming details. Medical professionals who practice in both Oregon and Idaho and face lawsuits or prosecution in Idaho would be shielded from adverse impacts on their licenses and malpractice insurance in Oregon.
Washington’s Democratic Gov. Jay Inslee had some choice words for his neighbor: “Make no mistake, Governor Little, the laws of another state that seek to punish anyone in Washington for lawful actions taken in Washington will not stand,” he wrote in an April 4 letter. “We will protect our providers, and we will harbor and comfort your residents who seek health care services that are denied to them in Idaho.”
The legislature has confidently steered the state into an unprecedented shortage of doctors.
The Seattle Times catalogued a few hypotheticals on Idaho-Washington travel, including what might happen if a parent allowed a relative to take a minor child to Washington state. (A relative might come under scrutiny under a provision that allows for an “affirmative defense,” that is, if a parent actually gave consent. But that does not stop the relative from being prosecuted—it’s up to the relative to prove their innocence.)
Idaho’s 2022 abortion law prohibits abortion except in cases of rape or incest (only if a police report is filed), or if the life of the mother is endangered. Minors can obtain an abortion under these circumstances only if a parent consents. The Idaho Supreme Court upheld the 2022 law in January. Of the six states bordering Idaho, Oregon has the most liberal policies; it has no abortion restrictions. Both Washington state and Montana allow abortions until viability, about 24 weeks. Utah permits abortions until 18 weeks; in Nevada, it’s 24 weeks. (For the moment, Wyoming’s near total abortion ban has been halted by a state district court judge who took issue with a statute asserting that abortion is not health care.)
This year, Idaho lawmakers backpedaled and unfurled exceptions and clarifications to the law’s language on rape, incest, ectopic pregnancies, and miscarriages. (The Idaho Supreme Court ruled last year that nonviable pregnancies were not subject to the state ban.) Yet when the Idaho Medical Association tried to add maternal-health exceptions beyond those about possible maternal mortality, lawmakers claimed that to do so would produce a surge of people trying to obtain abortions under the guise of maternal-health fears.
The legislature has confidently steered the state, which already had the fewest active physicians in the country, into an unprecedented shortage of doctors. This situation also has alarming repercussions for its neighbors who have already had to deal with the consequences. During the early stages of the COVID-19 pandemic, Inslee complained about Idaho patients “clogging up” Washington’s hospitals.
Beginning with the establishment of a trigger ban in 2020 in anticipation of Roe v. Wade being overturned, Idaho’s health care providers saw what they would be up against. Many doctors have decided not to gamble with the risks inherent in treating pregnancy complications.
In March, Bonner General Hospital in the northern Idaho town of Sandpoint shut down its obstetrics department, citing issues including decreases in annual deliveries as well as the loss of pediatricians to handle various stages of perinatal care including immediately before and after delivery. Attempts to secure other active and retired medical professionals on an on-call basis did not yield any workable solutions.
The hospital gave a no-holds-barred explanation for its decision. “Highly respected, talented physicians are leaving. Recruiting replacements will be extraordinarily difficult. In addition, the Idaho Legislature continues to introduce and pass bills that criminalize physicians for medical care nationally recognized as the standard of care. Consequences for Idaho Physicians providing the standard of care may include civil litigation and criminal prosecution, leading to jail time or fines.”
The nearest 24/7 obstetrics facility to Sandpoint is about an hour away in Coeur d’Alene. Another facility in Emmett, near Boise, plans to end labor and delivery services in June.
Dr. John Werdel, a Boise-area obstetrician/gynecologist, has pointed out that high-risk pregnancy specialists are joining the exodus. “It is NOT the restrictions on ‘elective’ abortion that are driving this unfolding nightmare,” he wrote in an op-ed that appeared in Idaho newspapers last month. “Physicians do not want to practice in Idaho; they do not want to live and raise a family in a state that criminalizes care that is both medically appropriate and necessary.”
Rural Idaho health care services are already under siege, with an estimated 150,000 people losing Medicaid after pandemic eligibility expires this month. (States could choose to extend postpartum Medicaid coverage under another pandemic-era provision, but Idaho, the lone holdout among the 13 states that have banned abortion, declined to do so.) An Idaho Hospital Association official has noted that many rural hospitals were already experiencing “negative operating margins.” Ending Medicaid reimbursements promises to further weaken rural hospital finances and expose obstetrics departments to closures.
The consequences of this war on health care have been playing out for several years. The state’s Maternal Mortality Review Committee recently released disturbing 2018–2020 statistics. In 2020, there were 11 maternal deaths in Idaho, a more than 50 percent increase over 2019. Eight of those women were on Medicaid. Of the 26 deaths studied in a three-year period, all were preventable. The legislature has disbanded the committee.
The Idaho legislature’s partisan jeremiad against abortion care has destroyed the ability of many Idaho women to safely deliver babies, by striking fear into practitioners that they will run afoul of the law through no fault of their own. This gambit should be yet another wake-up call for rural states that already have the strictest abortion laws and some of the worst health care outcomes in the country.
