IDAHO, USA — With an abortion ban going into effect on Aug. 25, some Idahoans are wondering what's to come with the lawsuits Planned Parenthood has filed against the state and what will happen when abortion becomes mostly illegal.
Because the U.S Supreme Court overturned Roe v. Wade with its ruling on Dobbs, abortion is now in the hands of the individual states. A previous law passed in Idaho allows mostly all abortion to become illegal 30 days after the SCOTUS judgment on July 26.
Now, the outcome of the abortion ban Idaho lawmakers passed is completely up to the Idaho Supreme Court pending lawsuits from Planned Parenthood.
There are exceptions to these abortion bans, although they are extremely narrow.
To have an abortion, someone has to provide a police report of a case detailing rape or incest, or the pregnant person's life has to be at risk.
If and when abortion becomes mostly illegal in the state, Idahoans seeking abortion care close to home may have to seek care elsewhere.
Legalities
Planned Parenthood has filed a total of three lawsuits against the State of Idaho.
If the Idaho Supreme Court chooses to order a stay on all three lawsuits Planned Parenthood has filed, the abortion ban will not go into effect Aug. 25. The stay is meant for holding implementation of a law while legal proceedings are decided. Essentially, Idahoans will be waiting even longer to see if abortion will be nearly illegal.
The first two lawsuits will both be heard at the same time before the Idaho Supreme Court, set for Aug. 3.
The hearing will include discussion on whether a pause on the Texas-style law should remain in place, whether the two lawsuits should be consolidated into one and whether both cases should be moved to district court.
If so, it will stop the 30-day clock while the legal proceedings continue on the lawsuits.
The state responded to Planned Parenthood's request to expedite the case in June, where they said the court should deny even hearing it at all.
"The remedy sought by petitioners should be sought in the legislature or the ballot box," the response, signed by Dayton P. Reed, said.
The first lawsuit
The first lawsuit Planned Parenthood filed is in relation to SB 1309, which amends the Fetal Heartbeat Protection Act.
This allows family members to bring civil lawsuits against a medical professional who performs an abortion on what they refer to as a "preborn child.". SB 1309 passed and was signed by Gov. Brad Little on March 23, 2022.
Family members of the fetus can sue abortion providers for up to four years after the procedure with a minimum of $20,000 in damages.
A loophole in the bill allows family members of a rapist who impregnated the person seeking an abortion to sue the provider as well, which Rep. Steven Harris, R-Meridian, confirmed to the House floor during the passage of the bill.
A petition for writ of prohibition from the lawsuit says SB 1309 violates the state's constitution, and cites clauses involving familial privacy, equal rights protection, separation of powers and due process.
SB 1385, the trailer bill for SB 1309, included a clause that placed a 30-day trigger on the law if SCOTUS overturned Roe. Idaho passed the trigger in 2020, which made abortion a felony.
The second lawsuit
The second lawsuit is addressing Idaho's "total abortion ban."
This ban, cited in Idaho Code 18-622, makes it a felony for “"every person to perform or attempt to perform an abortion." This is punishable from two to five years in prison. A health care professional who violates the ban will have their license suspended for six months and then revoked permanently if there is a second offense.
Once again, the only exception to this law is if a healthcare provider can prove that the parent's life would be at risk if they were to have the child.
Planned Parenthood's lawsuit regarding the total abortion ban says that the legalities detailing the abortion exception are too vague and narrow, making it confusing for physicians to decide what and what isn't necessary while at the risk of going to jail.
They once again cite familial privacy, equal protection and due process as being reasons the ban violates the Idaho Constitution.
The third lawsuit
A third lawsuit was filed by Planned Parenthood on July 25, which declares the six-week abortion ban, HB 366, that passed the legislature in 2021 is also unconstitutional. It is also known as the Fetal Heartbeat Protection Act, which SB 1309 amended.
The six-week ban criminalizes the performance of an abortion after a “fetal heartbeat” has been detected, which lawmakers cited as six weeks. This established a different type of trigger law, which would make the ban go into effect in Idaho if a similar law was upheld by a higher court in another state.
This happened in Georgia on July 20. The state's law banning abortion after six weeks from 2019 is now able to take effect after a federal court of appeals upheld the ban.
Planned Parenthood again cited the six-week ban as unconstitutional.
If the trigger ban is upheld, the six-week ban becomes moot.
Options
The new Planned Parenthood clinic opening in Ontario, Oregon, right across the Idaho border, will not be finished until later in the year or even in 2023, Kristi Scdoris, the communications director for Planned Parenthood Columbia Willamette told KTVB.
The next closest clinic is in Walla Walla, Washington. This clinic provides abortion pills up to around 10 weeks, which is common for the abortion pill method. Their Kennewick, Washington location performs abortion procedures through 15 weeks and six days, according to Abortionfinder.org.
Walla Walla, Washington is 199 miles from Boise. Kennewick, Washington is 289 miles from Boise. These miles grow the farther East someone in Idaho lives from the state capital.
Bend, Oregon also has a clinic.
Typically, it takes three or four weeks to develop a positive pregnancy test. That leaves nearly two weeks in Idaho for someone to figure out if they are pregnant and make the decision to seek an abortion.
Abortion scheduling with Planned Parenthood can also vary with call volume and amount of appointments.
If someone who is pregnant cannot schedule an abortion until a few weeks later due to a rise in appointments from the overturn of Roe, it will no longer be legal, and they will have to seek out care in another state. Additionally, with high call volume and scheduling an appointment farther in advance, they may be forced to receive the procedural abortion rather than the pill, which is only effective before 10 weeks and six days.
In a 3-2 vote on July 19, the Boise City Council established that the city will not divert additional resources for abortion.
"Investigations for the purpose of prosecuting abortion providers will not be prioritized, and additional resources or personnel will not be assigned," the resolution states.
Planned Parenthood will be continuing to provide abortion care until Aug. 25, according to previous reporting by KTVB.
In response to the leaked Supreme Court opinion on abortion, Planned Parenthood decided to close their Boise location to better distribute resources across the region.
The Boise location merged with an existing Meridian office, which currently provides both the abortion pill and the in-clinic procedure.
If abortions do become illegal on Aug. 25, the clinic will continue to provide as much care as they can that doesn't involve abortion.
Idaho State Director for Planned Parenthood Alliance Advocates, Mistie DelliCarpini-Tolman, told KTVB in June that the organization will try to help Idahoans access abortion care, as well as additional care, regardless of the barriers they may face.
"So, hand-in-hand with our patients, (we will be) making sure they can get the access to care that they need out of state if they have to, and then come back to their home state in the communities that care for them in the places where they live and make sure they get the follow up care that they need," she said.
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