This is my first blog on this subject, but it is likely not going to be my last.  Idaho’s trigger laws remain under state and federal court review.  Even if the courts do not send them back to the Idaho legislature for a re-write, I hope the GOP feels the wrath of angry Idahoans on November 8, so that they realize these laws must be repealed and re-written.

We have not had to confront real legislative debate on this difficult and nuanced issue for fifty years.  Although Idaho and other states have passed abortion statutes in an attempt to challenge the Roe/Webster/Casey legal standard, legislators have not had to give a lot of thought to the real world implications of the statutes, because they were unenforceable until now.  Now the laws are active, and unfortunately, they are confusing and poorly drafted.  I have spoken with obstetricians throughout the state of Idaho, and they all express a common concern.  In a medical emergency, they are now caught in an impossible Hobson’s choice created by the Idaho legislature:  if they act too late to save the life of the mother, they risk maternal life and health and face civil medical malpractice and licensing risks.  If they act too soon, they risk criminal prosecution and their medical licenses, as well as civil lawsuits filed by family members.  These risks for acting too soon in performing an abortion will not be covered by their medical malpractice insurance carriers.  

The medical procedures that fall under the umbrella legal/medical term “abortion” are incredibly common, and not for the reasons a lot of people assume.  One in four women will have an abortion before they reach age 50.  That sounds like a problem until you understand that abortion is the standard of care treatment for pregnancy complications that threaten a pregnant person’s life and health.  In Southeast Idaho, elective abortion has not been available for decades.  Pregnant people in this region have had to travel to obtain this kind of elective abortion care for a long time.  However, abortions have been provided regularly in our region, for good reason.  Pregnancy complications are common, and they are even more common for people of color.  Pregnancy remains a medically risky endeavor even for otherwise healthy people of reproductive age, and it is far riskier to maternal life and health to carry a baby to term than it is to have a safe medical abortion.  

Abortion is the treatment for ectopic and other nonviable and risky pregnancies.  The vast majority of abortions happen in the first trimester, but sometimes life threatening and/or catastrophic fetal medical issues are not discovered until the second or third trimester.  That is why strict and rigid cutoffs are unworkable, and we should trust medical professionals to guide pregnant people in making these difficult decisions. Risks associated with therapeutic abortions increase as a pregnancy progresses, and responsible medical providers already know they cannot offer this choice unless the risk of not doing the procedure outweighs the risk of doing the procedure.  These very difficult medical decisions need to be made as early in the pregnancy as possible, but the ob-gyn providers I have spoken with will always respect maternal choices to carry the pregnancy forward despite the risks to their own life and health.  Abortion is never forced on a patient.  

Ectopic pregnancy is very common, affecting 1 in 50 pregnancies.  Approximately fifteen percent of first trimester pregnancies end in miscarriage, and abortion care of some kind is often necessary to make sure no tissue remains that could cause more complications.  Fetal abnormalities are a common cause of miscarriage, but sometimes fetal abnormalities will survive the first trimester even when the abnormalities will lead to certain death and suffering when the baby is born, such as with anencephaly.  There are many other medical circumstances that require abortion care because of the very high risks to maternal life and health, including molar pregnancy, heterotopic pregnancy, twin reverse anemia polycythemia sequence, high order multiple gestations, placenta abruption, placenta previa, and placenta accreta, just to name some common complications of pregnancy.  Maternal age, too young or too old, creates high risk for dangerous and life threatening complications.  Pre-existing medical conditions including preeclampsia, cancer, pulmonary hypertension, autoimmune disease, heart failure, kidney disease and other chronic illness can all make a pregnancy medically risky and deadly.    

Just to give one example of the difficulty in medical decision making, one in three pregnant people with pulmonary hypertension will die if they bring their pregnancy to term.   I think we would all agree that is an uncomfortably high risk of death for any medical condition.  Is that risk high enough to terminate pregnancy under Idaho law?  Idaho doctors are unsure.  There was a report this week about a Texas woman who had to travel out of state to obtain a medical abortion to save her life, even though her baby would not survive beyond a few hours post-birth, because her doctors were unsure about whether they could provide that care.  The Idaho laws are modeled on the Texas laws, and in fact our statutes are even more restrictive.  This identical situation can easily happen here.  Do you want Idaho legislators to make that kind of life or death decision for you or your pregnant loved one?  I think most Idahoans would agree that these kinds of decisions belong to the pregnant person,  in consultation with their families and medical providers.  Asking pregnant people to travel out of state to obtain medically necessary life saving abortion care is cruel.  In many cases, that travel and built in additional time delay greatly increases their medical risks.  Their partners and their other children also do not deserve this cruelty.  

Sadly, rape and incest are also more common in our communities than many of us want to acknowledge.  I work in the legal system and specifically in the child welfare system.  I have had clients with some of the most heartbreaking trauma experiences you can imagine.  I have represented many child victims and I have represented their agonized parents.  Studies have shown consistently and conservatively that approximately one in three American women will experience sexual violence in their lifetimes.   Adolescents aged 12-17 are by far the most likely to be sexually victimized.  Nearly 80% of female sexual assault victims report their first assault before the age of 25.  

Although this is an extremely difficult area for data collection, some authorities estimate that some form of incest occurs in over 10% of American families.  These crimes are committed by people the victim loves and trusts, and usually the crimes begin when the victim is too young to understand what is happening to them.  Sadly, in Idaho rape and incest numbers have risen precipitously in the last five years, and that is just the data that is reported.   In my experience working in the child welfare system, most children who are sexually abused are not assaulted by strangers.  Most are abused by close family members.  

In a study published in 2015, data collected on reported rapes between 2009-2015 found that only 20% of the reported rapes in Idaho resulted in arrest, and only 8% resulted in convictions. Idaho had to enact legislation in 2019 because so many rape kits had gone unprocessed and untracked, leading to no justice at all for the victims.  Although Idaho is taking some steps to improve the broken system, it is easy to understand why victims are reluctant to report.  I can confirm through my experience that the criminal justice system is re-traumatizing 100% of the time for those who report, and victims seldom see justice.  

This is why the people I am speaking to all over District 29 and all over Idaho are so very angry about Idaho’s trigger bans.  Many of us have needed abortion care, and most of us know someone who has needed abortion care.  Most of us understand that the person who is most affected by the decision is in the best position to determine whether the reason for the procedure is a good one.

The Idaho laws right now are a confusing, jumbled mess.  The short story is that Idaho medical providers are no longer free to offer abortion care except in a hospital emergency care setting (and only by virtue of Judge Winmill’s recent ruling), or in other circumstances where the doctor determines “in good faith” that the fetus must die for the mother to live.  Doctors do not understand where the line is where they can act to reduce or eliminate risk to maternal life, and they have stated so in the Idaho court cases and in the press.   They do not want to wait until their patient is dying before they can provide lifesaving care.  That very idea – forcing doctors to watch their patients endure deadly risk and decline – is antithetical to their Hippocratic oath.  As most of us know through experience of some kind, pregnancy complications can turn deadly very quickly.  Hesitation and delay will, without any doubt in any medical provider’s mind, cause needless maternal death.  Pregnancy complications do not always end in maternal death.  Many times, the complications result in medical conditions that are life changing:  loss of organs; loss of brain function; loss of limbs; loss of fertility.  Doctors need to be able to act to protect maternal health as well as maternal life, and they need to be able to act in time to eliminate or reduce risk.

The current Idaho legislation is breathtaking in its cruelty. I would like to give the Idaho GOP legislators some grace on this, given that until this year, they knew these laws would be unenforceable when they were enacted.  I struggle giving that grace, given that the Idaho GOP platform currently states that they would like NO exceptions to abortion bans, including to save the life of the mother.  It shocks the conscience that they would vote this way, this year, knowing that the laws they enact will now go into effect.  Based on my conversations with so many of you, I think the Idaho GOP who voted that way at the convention are grossly out of touch with their Idaho constituents, regardless of party affiliation.  This position shows a gross lack of understanding about the risks inherent in pregnancy and childbirth, and a shocking lack of understanding of how many mothers will die without meaningful exceptions.  Most pregnant people seeking abortion care are mothers to other children. That should matter to your legislators, and it should cause them to re-write the current laws so that we can protect maternal health and life in a compassionate and fair way.  

No matter what you are seeing on social media, the current Idaho abortion trigger laws contain no language that would allow abortions even when the pregnancy is nonviable (including ectopic pregnancy); when there is catastrophic fetal abnormality; when the mother is of tender age; or when the mother has mental disabilities incompatible with enduring a pregnancy.  Under the current laws, ectopic pregnancy by definition is a pregnancy, and the treatment for it is abortion, and it is currently illegal in Idaho until maternal life is on the line.  The lawyers for the Idaho legislature had to admit this to Judge Winmill in federal court arguments a few weeks ago – but they tried to assure the Judge that doctors and pregnant people should just trust prosecutors not to bring charges.  That is a hard ask of pregnant people and their doctors, particularly considering that Bannock County tried to prosecute a pregnant person who took RU-486 outside of a hospital setting ten years ago, even while Roe v. Wade was still good law.  

The rape and incest exceptions are similarly deeply flawed, to the point of cruelty.  A victim can obtain an abortion only if they are willing to report the crime to police or child welfare, and they must have a report in their hand before they can obtain the abortion.  I have worked on these cases for a long time, and I know that these investigations cannot be closed and reports cannot be issued until they have talked to all witnesses and suspects.  They cannot risk revealing investigation details until that is done.  It takes months in most cases, and in many hard cases in my experience, especially involving children, it typically takes six months or more to get those police reports.  This is a meaningless exception in practice.  Idaho abortion laws now force victims to engage in a system that hurts them more often than it helps them in order to terminate a pregnancy that results from that crime.  Even if they do that, by the time they are “eligible” to abort the pregnancy, it may be too late and they will have already suffered greatly.

The real goal of these laws is to make abortion virtually impossible to obtain in Idaho by driving the providers out of the state.  That is undoubtedly what will happen if we do not make real change, quickly.  I have friends who are delaying having children until these laws change, because they cannot bear the medical risks.  I know young people of reproductive age who are leaving Idaho over this.  We will soon lose the best ob-gyn and family practice doctors, because they will not want to offer maternal health care in this state with their hands tied behind their backs.  They will move to other states where they can practice standard of care obstetric medicine.  This will lead to even higher rates of maternal mortality in Idaho unless we turn this ship around.

In talking to so many of you now about this, I know that most of you do not want this cruel legislation.  You want a legislative scheme that is fair, that is compassionate.  You want something that protects maternal life and health, and not just the life of a fetus.  You want something that has meaningful exceptions for rape and incest.  You want the dignity of pregnant people restored to them. 

I did not agree with the legal reasoning of the Dobbs decision, and I do not think legal scholarship nor history will judge it kindly.  Nonetheless, I have to accept it.  Now your voice must be heard at the ballot box.  If pregnant people matter to you, vote for principle and character.  Vote for the person, and not for the party.  Know how your legislators will vote on this issue before you cast your ballot.

I will be following the Idaho state and federal litigation closely, and I will write future blogs on my thoughts as those cases continue to develop.  I want to be your legislator in Boise now more than ever.  I want to be there to advocate for repeal and re-writing of these laws.  I want to be there if the Idaho Supreme Court invalidates the current scheme as untenably vague and requires it to be re-written.  I want to be there to fight hard against any attempts to make this situation worse rather than better.  I want to be there to protect related rights to contraception and the right to love who you want to love.  I will fight for you and for fair reproductive rights for all.  

Mary