BOISE, Idaho — A federal judge says his decision on whether Idaho's laws banning some health care providers from performing abortions is legal will likely hinge on the tension between two potentially conflicting U.S. Supreme Court decisions.
Planned Parenthood of the Greater Northwest and Hawaiian Islands filed the lawsuit against Idaho state officials in December, contending that a nearly two-decade-old state law that states only licensed physicians can perform abortions makes access to the procedure too difficult for rural and low-income women. That's because it prevents certified nurse practitioners, physician's assistants and nurse midwives from performing first-trimester medication-induced abortions and aspiration abortions, even though those health care providers can perform identical procedures when their patient is having a miscarriage.
Planned Parenthood has only a few physicians who are available to perform first-trimester abortions, and they are only available for the procedures a few days a week.
During a hearing Thursday, attorney Vanessa Soriano Power told U.S. District Judge B. Lynn Winmill that Idaho's law is akin to a Texas rule struck down by the U.S. Supreme Court in 2016. That rule required doctors who perform abortions to have admitting privileges to nearby hospitals and forced clinics to meet the same standards as surgical centers. The high court said those rules created an undue burden on women seeking abortions and that such laws had to be based on medical evidence that shows they actually protect women's health.
"Here, it is in fact hindering," Power told the judge. "Simply saying it's for the benefit of maternal health, when the facts show it can negative impact women's health ... the burden here is not insignificant."
Instead, the evidence shows restrictions like Idaho's actually harm women's health, Power said, because it forces some women to wait longer to have an abortion, potentially increasing the risks of the procedures. Idaho doesn't regulate other medical procedures performed by nurses and other health care providers, like childbirth and endometrial biopsies, even though those are "arguably more serious in certain respects to women's health," she said.
Idaho Deputy Attorney General Cynthia Yee-Wallace said the judge should throw out the case because another U.S. Supreme Court ruling made 21 years ago made it clear that states have a constitutionally protected right to restrict the performance of abortions to physicians only. Yee-Wallace said Idaho's rules ensure that only qualified doctors are performing what the state believes is a complicated medical procedure, in an effort to ensure women's health.
"What plaintiffs are claiming as their right is not just the ability to have a pre-viability abortion ... they're claiming they have a right to publicly accessible abortion on evenings and weekends," Yee-Wallace said. "That's what they're asking the court to remedy."
But the judge noted doctors who work as general practitioners and family physicians are becoming increasingly scarce in Idaho and elsewhere.
"I've even heard comments that sometime in the near future that almost all primary care is going to be provided by physician's assistants, and all MDs will be specialists," Winmill said. "Hypothetically, if in the state of Idaho there is no licensed physician willing to perform abortions but there are APCs (advanced practice clinicians) who are willing to perform abortion, that clearly impacts a woman's rights."
The difference between a physician's assistant and a licensed physician is about the same as the difference between a primary care physician and a specialist, the judge said.
"If for some reason every licensed physician died tomorrow, and there was no licensed physician willing or able to perform abortions, I think we would be in a different position," Yee-Wallace said. "What's at issue is that the Constitution allows the state to regulate" abortions to physicians only.
Winmill said he'd issue a written ruling in the future, after considering the arguments and doing some more reading.
"I appreciate the quality of the briefing," Winmill told the attorneys. "There are obviously strong feelings on both sides of the issue, which came out loud and clear."