ANTI-CHOICE LAWS
Abortion Ban
AFTER 12 WEEKS
Idaho's unconstitutional and unenforceable ban outlaws abortions performed as early as twelve weeks. Idaho Code §§ 18-605 (Enacted 1973; Last Amended 2001), 18-613 (Enacted 1998).
A court held that Idaho's ban is unconstitutional because its language is "void for vagueness," and because the ban lacks an exception to protect women's health. The court issued a permanent injunction prohibiting the law's enforcement. Weyhrich v. Lance, No. CV98-0117-S-BLW (D. Idaho Oct. 12, 1999). The U.S. Supreme Court held that a similar ban that lacks an exception to protect a woman's health and that bans more than one procedure is unconstitutional. Stenberg v. Carhart, 530 U.S. 914 (2000).
Idaho's unconstitutional and unenforceable law makes the performance of any abortion procedure that falls within a broad definition a felony, unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, illness, or injury. Penalties include a fine of up to $5000, imprisonment for two to five years, or both, and - if the person is licensed or certified to provide health care - professional discipline and a civil penalty. Idaho Code § 18-605 (Enacted 1973; Last Amended 2001).
There is also a Federal Abortion Ban, which applies nationwide regardless of state law. The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health. In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure. Click here to read more about the Federal Abortion Ban.
Biased Counseling & Mandatory Delay
A woman may not obtain an abortion until the physician provides her with an "accurate and substantially complete explanation" of: (1) a description of the proposed procedure; (2) any reasonably foreseeable complications and risks associated with the proposed procedure, including those related to future reproductive health; and (3) the comparable risks associated with each alternative to such procedure, including childbirth and adoption.
In addition, a woman may not obtain an abortion until, if reasonably possible, at least 24 hours after she has been provided with "non-misleading and medically accurate" state-prepared materials that must include: (1) photographs of a fetus and descriptions of its anatomical and physiological characteristics at two-week intervals; (2) a description of services available to assist a woman throughout pregnancy, upon childbirth, and while a child is dependent, including adoption services, and a comprehensive list of public and private agencies providing such services; (3) descriptions of the procedures used at the various stages of pregnancy; and (4) foreseeable risks and complications of the procedures, including those related to subsequent childbearing.
Idaho Code §§ 18-604, -609 (Enacted 1973; Last Amended 2007).
The Idaho attorney general has issued an opinion stating that the state-prepared materials provision, including the 24-hour waiting period, is constitutional. Idaho Op. Att'y Gen. No. 93-1 (Feb. 10, 1993).
Insurance Prohibition for Abortion
Disability insurance policies, individual insurance policies, and managed care plans must exclude coverage for abortions unless the procedure is necessary to preserve the woman's life. Coverage may be obtained only if the carrier elects to offer it and an additional premium is paid. Idaho Code §§ 41-2142, 2210A, 3439 (Enacted 1983); Idaho Code § 41-3924 (Enacted 1983; Last Amended 1997).
Other Anti-Choice Law
Idaho has created additional threats to privacy and choice by adding anti-choice language to its state code to express its opposition to abortion and its intent to restrict the right to choose to the greatest extent possible.
"The supreme court of the United States having held in the case of 'Planned Parenthood v. Casey' that the states have a 'profound interest' in preserving the life of preborn children, Idaho hereby expresses the fundamental importance of that 'profound interest' and it is hereby declared to be the public policy of this state that all state statutes, rules and constitutional provisions shall be interpreted to prefer, by all legal means, live childbirth over abortion." Idaho Code § 18-601 (2001).
Refusal to Provide Medical Services
ABORTION REFUSAL CLAUSE
Idaho allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Physicians, nurses, technicians, or hospital or physician employees.
What does the refusal clause allow? No physician may be required to perform or assist in an abortion. No nurse, technician, hospital employee, or physician's employee, who objects on personal, moral, or religious grounds, may be required to participate in an abortion. Any person employed by or under the control of a hospital must state such objection in writing.
No hospital upon objection by its governing board may be required to admit a woman or to furnish facilities for the purpose of an abortion. The refusal to participate or admit may not be a basis for a claim for damages or recriminatory action.
Must the refusal be in writing? Yes.
Does the law require the refusing individual or entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Idaho Code § 18-612 (Enacted 1973).
STERILIZATION REFUSAL CLAUSE
Idaho allows certain individuals or entities to refuse to perform or participate in sterilization procedures.
To whom does the refusal clause apply? Physicians, nurses, technicians, or physician, hospital, or governmental agency employees.
What does the refusal clause allow? No physician, nurse, technician, or other employee of any physician, hospital, or governmental agency, who objects on religious or moral grounds, may be required to participate in any sterilization procedures. Any such objection must be in writing and state the grounds for such objection.
No hospital may be required to furnish facilities or admit patients for sterilization procedures if, upon determination by its governing board, it elects no to do so. The refusal to participate or admit may not be a basis for a claim for damages or recriminatory action.
Must the refusal be in writing? Yes.
Does the law require the refusing individual or entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for sterilizing procedures? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Idaho Code § 39-3915 (Enacted 2003).
Restrictions on Low-Income Women's Access to Abortion
Idaho prohibits public funding for abortion for women eligible for state medical assistance for general health care unless the procedure is necessary to preserve the woman's life or the pregnancy is the result of rape or incest. In cases of rape or incest, a woman must provide documentation that rape or incest was reported to a law enforcement agency, a copy of court determination of rape or incest, or a written certification from the physician that the woman was unable to report the rape or incest for reasons related to her health. Idaho Code § 56-209c; Idaho Admin. Code § 16.03.09.511-514; Idaho Dep't of Health and Welfare, Medicaid Provider Handbook, Physician/Osteopath Guidelines §§ 3.10.1-4 (Rev. Jan. 2009) at http://www.healthandwelfare.idaho.gov/site/3438/default.aspx.
A court held that this law is constitutional under the Idaho Constitution, finding that Idaho may provide medical assistance for pregnancy-related expenses while refusing to fund abortions necessary to preserve a woman's health. However, the court held unconstitutional a provision requiring two-physician certification for the life, rape, and incest exceptions. Planned Parenthood of Idaho, Inc. v. Kurtz, No. CVOC0103909D (Idaho Dist. Ct. June 12, 2002).
Restrictions on Young Women's Access to Abortion
Idaho law restricts young women's access to abortion.
Is the law enforceable? Yes. In March 2007, Idaho enacted a new parental consent law to replace previous versions of the statute which have been deemed unconstitutional and unenforceable by the courts. Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 926 (9th Cir. 2004), cert. denied, 544 U.S. 948 (2005) (unconstitutional and unenforceable because it contained an inadequate medical emergency exception to protect a young woman's health); Planned Parenthood of Idaho, Inc. v. Wasden, 376 F. Supp. 2d 1012 (D. Idaho 2005) (granting preliminary injunction due to an undue burden on the young woman's right to choose an abortion.), appeal dismissed as moot, No. 05-36155 (9th Cir. Apr. 26, 2007).
Who is considered a minor? A young woman under the age of 18.
What is required - parental consent or parental notice? Consent.
Who must provide consent? One parent.
Are there other trusted adults who may provide consent instead? No.
What is the process for obtaining consent? A young woman may not obtain an abortion unless the attending physician secures the written consent of one parent.
May the parental mandate be waived if a young woman is a victim of rape or incest? Yes.
May the parental mandate be waived if a young woman is a victim of child abuse? No.
May the parental mandate be waived if a young woman's health is threatened? Yes, but only if the attending physician certifies that a medical emergency exists. A medical emergency is defined as "a condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function." An earlier version of this law which has been declared unconstitutional by a federal court defined "medical emergency" as a "sudden and unexpected physical condition" of the young woman that is "abnormal" and necessitates an immediate abortion to preserve her life or for which a delay will create "serious risk of immediate, substantial and irreversible impairment of a major physical bodily function."
May the parental mandate be waived under any other circumstances? Yes, the young woman may try to obtain permission from a judge.
If a young woman must obtain permission from a judge, what is the process? She must secure a court order stating either that, by clear and convincing evidence, she is mature and capable of giving informed consent to the proposed abortion or that an abortion without parental consent is in her best interests.
Are there other significant requirements under the law? No.
Has a court considered the constitutionality of this law? No. The constitutionality of Idaho's new parental consent mandate has not been challenged.
Other information about the law: Previous versions of this law were found unconstitutional and unenforceable. Planned Parenthood of Idaho, Inc. v. Wasden, No. 00-353-S-MHW (D. Idaho Dec. 18, 2004); Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir. 2004), cert denied, 544 U.S. 948 (2005); Planned Parenthood of Idaho, Inc. v. Wasden, 376 F. Supp. 2d 1012 (9th Cir. 2005).
Idaho Code §§ 18-602 (Enacted 2000; Renumbered 2001; Last Amended 2005), -604 (Enacted 1973; Last Amended 2006), -609A (Enacted 2000; Last Amended 2007), -609F, -609G (Enacted 2007),-614 (Enacted 2001, Last Amended 2007).
Targeted Regulation of Abortion Providers (TRAP)
Idaho prohibits certain qualified health care professionals from performing abortions, and has an unconstitutional and unenforceable law that subjects abortion providers to burdensome restrictions not applied to other medical professionals.
Restrictions on Where Abortions May Be Performed
Among the most common TRAP regulations are those restricting the performance of abortions to hospitals or other specialized facilities, which require doctors to obtain medically unnecessary additional licenses, needlessly convert their practices to mini-hospitals at great expense, or perform abortions only in hospitals, an impossibility in many parts of the country.
Idaho has an unconstitutional requirement that all second trimester abortions be performed in a hospital. Idaho Code § 18-608(2) (Enacted 1973).
The U.S. Supreme Court held that a strict second trimester hospitalization requirement unconstitutionally burdens a woman's right to choose to have an abortion. Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983).
The Idaho Attorney General has concluded that Idaho's second trimester hospitalization requirement is unconstitutional. Idaho Op. Att'y Gen. No. 98-1 (Jan. 26, 1998).
Restrictions on Who May Perform Abortions
Idaho prohibits certain qualified health care professionals from performing abortions.
Only a physician licensed by the state to practice medicine and surgery or osteopathic medicine and surgery may perform an abortion. Idaho Code § 18-604(5) (Enacted 1973; Last Renumbered 2000; Last Amended 2006); Idaho Code § 18-608 (Enacted 1973), Idaho Code § 18-608A (Enacted 2000).
OTHER LAWS
Post-Viability Abortion Restriction
Idaho has an unconstitutional and unenforceable provision in its law that states that no abortion may be provided after viability, construed as when a fetus is "potentially able to live outside the mother's womb, albeit with artificial aid," unless the attending physician and another consulting physician concur that an abortion is necessary to preserve the woman's life or that the fetus, if born, would be unable to survive. Consistent with accepted medical practice and with the well-being and safety of the woman, the physician must provide the procedure in a manner consistent with the "preservation of any reasonable potential for survival of a viable fetus." Idaho Code §§ 18-604(13) (Enacted 1973; Last Amended 2000; Renumbered 2006), 18-604(14) (Enacted 1973; Last Amended 2000; Renumbered 2006), 18-608(3) (Enacted 1973; Last Amended 2000).
This law unconstitutionally prohibits post-viability abortion necessary to preserve the woman's health. See Roe v. Wade, 410 U.S. 113, 165 (1973). The Idaho attorney general has issued an opinion that this lack of a health exception is unconstitutional. Idaho Op. Att'y Gen. No. 98-1 (Jan. 26, 1998).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortion so long as they contain adequate exceptions to protect the woman's life and health. NARAL Pro-Choice America opposes Idaho's post-viability restriction because it does not contain an exception to protect the health of the woman.
