When I’m driving for work around Southern Oregon, riders often ask me where I’m from. I tell them, “Boise, Idaho,” and they usually ask, “why’d you leave?” To which I answer, “Go to Google News. Type in ‘Idaho.’ The first five stories there are why I left.”
Today, there is a perfect example.
A federal judge denied Idaho Attorney General Raúl Labrador’s request to reconsider the order barring the state from prosecuting emergency room physicians for providing abortion care to stabilize a patient.
Idaho Capital Sun: Judge won’t reconsider order protecting Idaho ER doctors from abortion prosecutions
Got that? A woman could be in the emergency room in critical condition, with doctors ready to take the steps to protect her life, but a Mormon lawyer wants to arrest them and put them in prison if they try.
Why? Because saving the birthing module’s life isn’t as important as protecting the weeks-old developing clump of cells in her belly that might someday grow up to become a Mormon Republican!
Idaho’s ban on abortion applies to all stages of pregnancy and makes exceptions only for documented cases of rape and incest or to save the pregnant person’s life.
Is that clear enough? All stages. As in, six seconds after you’ve made your O-face and the first little swimmer reaches the egg and penetrates it, she is now forbidden by law and the threat of arrest and imprisonment if she undertakes any action to stop the development of that fetus before it is born into the world.
But abortion’s legal to save her life, right? Not as the federal judge sees it. See, there’s a federal law, EMTALA, that requires hospitals receiving federal funds to provide stabilizing care for problem pregnancies. The judge had upheld Idaho’s abortion ban on its own earlier, once it was made clear that life-threatening situations like ectopic pregnancies wouldn’t be prosecuted. But now he is stopping the ban due to its conflict with EMTALA
“In each of these scenarios, the stabilizing care EMTALA requires a physician to offer may include terminating a still-developing pregnancy covered under the Idaho Supreme Court’s more limited definition of ‘abortion,’” [Judge] Winmill wrote. “Thus, the exclusion of ectopic and other nonviable pregnancies from the total abortion ban does not negate the continuing need to enjoin the ban to the extent it still clearly conflicts with EMTALA.”
But even that scenario is in flux, as the Idaho Legislature has removed language, effective in July, that provided physicians an affirmative defense from prosecution. An affirmative defense is a legal concept where you commit a crime, you’re arrested for the crime, you go to court for the crime, but then if you can prove to the judge that you were forced to commit the crime to save a life, you’re not convicted of the crime.
Affirmative defense was often used in early state medical marijuana laws. You’d smoke weed as medicine, cops would arrest you for being a pothead, you’d be booked and fingerprinted as a pothead, you’d get your pothead mugshot, there’d be a notice in the paper that you’re a pothead, people could look online to see you’re an arrested pothead, you could hopefully then bail out of jail or otherwise remain there as a pothead, until you go to court, where your attorney or public defender would show the judge your medical marijuana card and the whole thing would be dismissed. Oh, but not all that stuff about the whole world being told you are a pothead. That stays around forever.
Now, change “smoke weed as medicine” to “perform a medically-necessary abortion to save a woman’s life” and change “pothead” to “murderer” and you can see how the affirmative defense works for Idaho’s OB/GYNs.
Until July, that is. Then, they don’t even get that affirmative defense. If the abortion was performed and the woman didn’t suffer from one of the specific complications that’s guaranteed to kill her, the doctor must presume anything he does to kill the fetus lands him a felony murder charge. It’s no wonder OB/GYN’s are fleeing Idaho in droves.
But that’s not enough for the Idaho Elder Attorney General.
Labrador sent the opinion to Rep. Brent Crane, R-Nampa, who requested it on behalf of anti-abortion clinic Stanton Healthcare. Labrador said in the letter that abortion pills are included in Idaho’s abortion ban, and medical professionals who supply them are subject to the state’s criminal penalties, including those who refer and prescribe the pills to pregnant patients across state lines.
Here’s another legal area where abortion law is going to run into medical marijuana precedent. Back in the 90s as medical marijuana started in California, the Clinton Administration tried to muzzle doctors so they could not talk to their patients about federally-illegal substances (marijuana) to their patients. The Supreme Court in Conant v. Walters decided that while the FDA could regulate what drugs doctors could prescribe, doctors still had a First Amendment right to recommend any treatment they believe is medically necessary. The courts will also agree, I believe, that referring a patient for abortion care out-of-state is protected speech for doctors.
But that still doesn’t forestall the harm engendered now by Elder Labrador’s threats.
Providers at two of the largest hospital systems in Idaho, St. Luke’s and Saint Alphonsus health systems, have said they will not be referring patients for any type of abortion care in other states until the lawsuit is resolved.
There you have it. If daddy rapes his 13-year-old daughter and impregnates her, she can’t get an abortion in Idaho, she can’t get abortion pills in Idaho, and anyone who tries to take her out-of-state for an abortion without daddy knowing is guilty of the nation’s only abortion trafficking law and faces felony charges.
But there’s an exception for rape and incest, isn’t there? Yes. But read closely. “Idaho’s ban on abortion applies to all stages of pregnancy and makes exceptions only for documented cases of rape and incest or to save the pregnant person’s life.
That means if incestuously pregnant teenage daughter wants an abortion, she has to report her incestuous rape by daddy to the police. Which could be complicated by, oh, I don’t know, say an incestuous abusive daddy that tells daughter to keep a secret or else he’ll kill the whole family with the Idaho-beloved AR-15 he keeps lovingly displayed on the wall. Or the possibility that daddy’s arrest means no food or housing for the family. Or the fear of having to publicly recount in a court of law how daddy liked to touch her.
But don’t worry. In Idaho, she has other options. For one, if she gets sick while pregnant, her parents can legally prevent her from receiving any medical care, choosing instead to pray away the illness, even if it kills her or her fetus. Won’t that make an interesting court case? Did the mother choose not to get treatment for pneumonia because she wanted illegally abort her fetus against God’s will, or because she wanted to legally believe faith would cure her, as is God’s will?
It’s a shame we can’t subpoena God to testify, huh?
