BOISE, Idaho — After nearly 50 years, the issue of whether abortion remains legal is once again up to the states, under the U.S. Supreme Court's ruling announced June 24 that overturns the 1973 Roe v. Wade decision. The court issued its official judgment on Tuesday, July 26, meaning an Idaho "trigger ban" passed in 2020 is set to take effect on August 25.
"It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives," Justice Samuel Alito writes in his opinion for the court in Dobbs v. Jackson Women's Health Organization. In that 6-3 decision, the Supreme Court upheld a Mississippi law that prohibits abortion after the 15th week of pregnancy, except in a medical emergency or "severe case of fetal abnormality."
Lawmakers in some states, such as California, have passed laws establishing legal abortion. Idaho lawmakers have done the opposite.
The Idaho Legislature in 2020 passed a law making it a felony to perform an abortion, effective 30 days after either the U.S. Constitution was amended or the U.S. Supreme Court issued a judgment restoring to the states the authority to prohibit abortion. The law includes an exemption, an "affirmative defense" that must be proven in court by a "preponderance of evidence" (more likely than not), for abortions performed when a doctor, "in good faith medical judgment and based on the facts known to the physician at the time," has determined the abortion was necessary to prevent the death of the pregnant woman. That does not include cases where a doctor deems an abortion necessary because the doctor believes a pregnant woman may take action to harm herself.
The law also includes an exemption for cases of rape or incest, if the woman has reported the act of rape or incest to law enforcement and provided a copy of that report to the physician who would be performing the abortion.
A newer law, approved by the Idaho Legislature and Gov. Brad Little earlier this year, allows certain family members to sue for at least $20,000 in civil damages if an abortion is performed after a fetal heartbeat is detected, which can be as early as six weeks into pregnancy, when a woman may not even know she is pregnant. A hearing on a lawsuit challenging that law, also known as Senate Bill 1309, is scheduled for August 3 in the Idaho Supreme Court. Meanwhile, a stay issued in April remains in place, blocking enforcement pending a decision on the lawsuit. That law is an amendment to the 2021 Fetal Heartbeat Preborn Child Protection Act, which established criminal penalties that would take effect if the Supreme Court or an amendment to the U.S. Constitution returned to the states authority to regulate or ban abortion.
Although the Supreme Court has returned such authority to the states, neither law mentioned here takes effect immediately. Under the 30-day clause in the text of the legislation, as things stand right now, the 2020 law will go into effect after an "issuance of judgment" by the U.S Supreme Court. The court entered its judgment July 26. Idaho's trigger law is not in effect until August 25. In the meantime, doctors may continue to perform abortions. After the Supreme Court ruling was first announced in June, Planned Parenthood, which also provides many services other than abortion, said it will keep all of its abortion appointments within that time window.
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