By Kim Stanger

The turmoil over Idaho abortion laws continues. On August 12, 2022, the Idaho Supreme Court ruled that Idaho’s total abortion ban will take effect August 25, 2022. It also lifted the stay on Idaho’s Texas-style statute that allows certain family members to sue persons who perform abortions after a fetal heartbeat is detected. Planned Parenthood’s lawsuit challenging the laws will continue, but in the meantime, the laws will take effect. The Idaho Supreme Court has set a hearing on the merits of the lawsuit for September 29, 2022.

On the federal front, the Department of Justice sued Idaho, claiming that the total abortion ban is preempted by the Emergency Medical Treatment and Labor Act (“EMTALA”) for those women seeking emergency care at hospitals. The hearing on the DOJ’s motion for a preliminary injunction is set for August 22, 2022.

Given these developments, here is our updated “best guess” concerning the state of Idaho abortion law effective August 25, 2022, subject to further guidance from the Attorney General, the courts, or the legislature.

1. What is an “abortion” in Idaho?

Idaho generally defines “abortion” as:

the use of any means to intentionally terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child….¹

“Unborn child” means “an individual organism of the species Homo sapiens from fertilization until live birth.”² “Clinically diagnosable pregnancy” is not defined.

2. Under what circumstances may an abortion be performed in Idaho?

1. Effective August 25, 2022,³ abortions of a clinically diagnoseable pregnancy are illegal unless the abortion is performed by a physician and:
   1. The physician determines the abortion is necessary to prevent the death of the pregnant woman and the physician performed the abortion in a manner that provided the best opportunity for the unborn child to survive; or
   2. In the case of rape or incest, the woman reported the rape or incest to law enforcement and provided a copy of the report to the physician prior to the abortion; or
   3. In the case of rape or incest of a woman who is a minor or subject to guardianship, the woman, her parent, or her guardian reported the rape or incest to law enforcement and provided a copy of the report to the physician prior to the abortion.⁴
2. Partial-birth abortions are prohibited unless necessary to save the life of the pregnant woman.⁵

3. What are the penalties for performing or participating in an illegal abortion?

1. Any person who performs or attempts to perform an illegal abortion commits a felony punishable by: (i) between two (2) and five (5) years in prison; and (ii) suspension of his/her professional license for at least six (6) months for a first offense, and permanent revocation for subsequent violations.
2. It is not clear to what extent a person who acts as an accomplice or accessory to an illegal abortion may be criminally liable. Idaho Code § 18-606 states that a person who acts as an accomplice or accessory “to any violation of section 18-605” commits a felony and (i) shall be fined up to $5,000, and (ii) imprisoned from one (1) to five (5) years.⁷ Idaho’s new total abortion ban, § 18-622, effectively preempts § 18-605, but makes no reference to § 18-606. Instead, § 18-622 states that those who assist in an illegal abortion shall be subject to suspension of his/her professional license for at least six (6) months for a first offense, and permanent revocation for subsequent violations,⁸ but it does not extend criminal liability to those who assist. Accordingly, it may be that § 18-606 is no longer enforceable. Nevertheless, a prosecutor may attempt to rely on general criminal accomplice statutes even if § 18-606 is not enforceable.
3. It is not clear whether women who receive an abortion are subject to criminal penalties. Idaho’s total abortion ban states that “nothing in this section” shall be construed to subject a woman to criminal liability for an abortion.9 However, a different, older section states that women who knowingly submit to or solicit an illegal abortion for themselves are guilty of a felony and (i) shall be fined up to $5,000, and (ii) imprisoned from one (1) to five (5) years.¹⁰ It is not clear whether the new statute was intended to supersede or nullify the older statute.

4. May providers be sued for performing an abortion?

1. If an abortion is attempted, induced, or performed after a fetal heartbeat is or should have been detected,¹¹ the mother, father, grandparent, sibling, aunt, or uncle of the preborn child may sue medical professionals who knowingly or recklessly attempted or performed the abortion¹² unless:
   1. There is a medical emergency, i.e., “a condition that…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”;¹³ or
   2. In the case of rape or incest, the woman reported the rape or incest to law enforcement and provided a copy of the report to the physician prior to the abortion;¹⁴ or
   3. In the case of rape or incest of a woman who is a minor or subject to guardianship, the woman, her parent, or her guardian reported the rape or incest to law enforcement and provided a copy of the report to the physician prior to the abortion;¹⁵ or
   4. The person bringing the lawsuit impregnated the mother through rape or incest.¹⁶
2. The plaintiffs in the lawsuit may recover (i) damages, (ii) statutory damages of at least $20,000, and (iii) costs and fees.¹⁷
3. A court may not award costs and fees to the defendant unless the defendant can prove that the defendant (i) conducted an appropriate test to determine if there is a fetal heartbeat before the abortion was performed, (ii) recorded the information about the test in the woman’s medical record, and (iii) otherwise complied with the requirements for an appropriate abortion.^{18 19}

5. Who may perform an abortion?

1. Only physicians may lawfully perform an abortion.²⁰
2. Only licensed physicians and those licensed or registered healthcare providers acting under the direct supervision or on the order of a physician may advertise items or services to induce an abortion; others who do so are guilty of a felony.²¹

6. Are non-physicians who assist in or fill prescriptions for prohibited abortions subject to liability?

As discussed above, non-physicians who advertise, perform, or act as an accomplice or accessory are potentially liable for violations.²² However, persons who act in good faith on the order or under the direction of a licensed physician are generally protected from liability for illegal abortions. For example, no hospital, nurse, or other healthcare personnel are deemed to act as an accomplice or accessory to an illegal abortion if they provide services in good faith in reliance on the directions or order of a physician.²³

7. Where may abortions be performed?

1. During the first 13 weeks of pregnancy, abortions may be performed (i) in a hospital or (ii) in a physician’s regular office or a clinic, which office or clinic is properly staffed and equipped and has a satisfactory arrangement with a local hospital to render emergency care if needed.²⁴
2. After 13 weeks of pregnancy, abortions must be performed in hospitals.²⁵

8. What limits apply to abortifacients?

1. Under Idaho law, “abortifacients” are defined to include mifepristone, misoprostol, and/or other chemical or drug used to cause an abortion. However, the term does not apply to the use of such drugs to treat ectopic pregnancy.²⁶
2. Persons may not sell or advertise abortifacients unless (i) the sale, offer, or display is to a physician or druggist or their intermediary; or (ii) the sale is made upon prescription or order of a physician.²⁷
3. No physician may give, sell, dispense, administer, prescribe, or provide an abortifacient to effect a chemical abortion unless the physician (i) may assess the duration of the pregnancy accurately; (ii) has determined, if clinically feasible, that the unborn child is within the uterus and not ectopic; (iii) can surgically intervene in cases of incomplete abortion or severe bleeding, or, if the physician does not have admitting privileges at a local hospital, has made a documented plan and arrangements with other physicians to provide emergency care; (iv) provides required information as described more fully below; and (v) makes reasonable efforts to ensure that the patient returns for a follow-up visit to confirm that the pregnancy has been terminated and to assess the patient’s medical condition.²⁸

9. What physical, mental, or emotional conditions of the mother will permit abortions?

1. Abortions may be performed to save the life of the pregnant woman.²⁹ This does not include situations in which the pregnant woman may or will take action to harm herself.³⁰
2. As discussed below, the Department of Health and Human Services (“HHS”) takes the position that EMTALA preempts contrary state law and authorizes abortions if necessary to stabilize the mother’s emergency medical condition.³¹ EMTALA is triggered if a woman comes to the hospital seeking emergency care and is determined to have an emergency medical condition, i.e.,

a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—

1. placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,
2. serious impairment to bodily functions, or
3. serious dysfunction of any bodily organ or part….³²

According to HHS, “[e]mergency medical conditions involving pregnant patients may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.”³³ The DOJ has sued Idaho to confirm that EMTALA preempts Idaho’s total abortion ban for women who come to a hospital and have an emergency medical condition.

10. May an abortion be performed if the fetus has conditions that make viability improbable or that may result in severe birth defects?

There is no exception that allows an abortion based on the condition of the fetus.³⁴

11. What procedures must be followed before performing an abortion?

Physicians, hospitals, and other facilities performing an abortion must do the following:

1. Except in the case of a medical emergency, determine the probable post-fertilization age of the unborn child through appropriate tests, examinations, and inquiries of the pregnant woman.³⁵ However, this requirement is part of Idaho’s 20-week abortion ban, I.C. § 18-501 et seq. That ban along with the requirement to determine the post-fertilization age of the unborn child would appear to be moot given the total abortion ban.
2. Obtain informed consent from the pregnant woman.³⁶ A physician, hospital, or other facility may refuse to perform an abortion if the pregnant woman refuses regardless of her age or competence.³⁷
3. Except in the case of a medical emergency, at least 24 hours before the abortion is performed, the physician, hospital, or other facility must comply with the following:
   1. Provide to the patient information published by the Idaho Department of Health and Welfare (“DHW”) concerning abortions. The information is available here. The attending physician or his/her agent must certify that the information was timely provided as required.³⁸
   2. The attending physician or her/his agent must inform the patient by telephone or in person that (i) ultrasound imaging and heartbeat monitoring are available so that the woman may view the unborn child; and (ii) the DHW information and website described above list facilities that offer such services at no cost. If the woman contacts the abortion facility by e-mail, the facility must inform the woman of the foregoing information in a larger font than the rest of the e-mail.³⁹
4. Do not collect a fee for an abortion until after providing the required information to the pregnant woman.⁴⁰
5. If an ultrasound is used to perform an abortion, prior to the abortion the physician or her/his agent must (i) inform the woman that she has the right to view the ultrasound image of her unborn child before an abortion is performed; (ii) if requested, allow the woman to view the ultrasound; (iii) offer a physical picture of the ultrasound image; and (iv) provide such other information which in the attending physician’s judgment is relevant to the woman’s decision concerning the abortion.⁴¹
6. For chemical abortions, the physician must satisfy the following: (i) if the physician does not have admitting privileges at a local hospital, the physician must have a documented plan to provide emergency care through other qualified physicians; (ii) have a written agreement with such other physicians to provide emergency care if required; (iii) inform the pregnant woman that she may need access to medical facilities equipped to provide blood transfusions and resuscitation, if necessary; and (iv) if the appropriate medical facility is other than a local hospital emergency room, the physician must provide the patient with the name, address, and telephone number of such facility in writing.⁴²
7. Except in the case of a medical emergency, before performing or inducing an abortion, determine whether there is a fetal heartbeat, and record in the pregnant woman’s record whether or not the heartbeat is present, the estimated gestational age of the preborn child, the testing method, and the date and time of the test.⁴³ However, this requirement is intended to implement Idaho’s fetal heartbeat law, the criminal portions of which were superseded by Idaho’s total ban on abortions.⁴⁴ It is, however, relevant to any defense of a civil lawsuit, especially if the healthcare professional seeks to recover costs and fees.⁴⁵

12. May an unemancipated minor consent to their own abortion in Idaho?

1. Under Idaho law, the attending physician must generally secure written consent to perform an abortion on an unemancipated minor from one of the following: (i) one of the minor’s parents or the minor’s guardian or conservator;⁴⁶ or (ii) a district court judge after an appropriate hearing.⁴⁷
2. The attending physician is not required to obtain parental or judicial consent if either: (i) the pregnant minor certifies that the pregnancy resulted from rape or sexual conduct with the minor’s parent, stepparent, uncle, grandparent, sibling, adoptive parent, legal guardian, or foster parent; or (ii) a medical emergency exists, and the attending physician documents the emergency in the minor’s medical record.⁴⁸
3. Physicians performing an abortion on an unemancipated minor are protected from criminal or administrative liability based on the failure to obtain informed consent if (i) prior to performing the abortion, the physician obtains either positive identification or other documentary evidence from which a reasonable person would have concluded that the woman seeking the abortion was either an emancipated minor or was not then a minor, and (ii) the physician retained a legible photocopy of such evidence.⁴⁹

13. What are the reporting requirements for abortions?

1. Within 15 days after an induced abortion, the attending physician must complete, file, and submit the induced abortion reporting form to the Bureau of Vital Statistics.⁵⁰ See here.
2. If the physician performed an abortion without providing the required DHW and ultrasound information described above to the patient, within 30 days after the abortion the attending physician or his/her agent must deliver to DHW a report signed by the attending physician denoting the medical emergency that excused compliance with the requirement to provide the information. The report should preserve the anonymity of the patient.

14. What are the penalties for failing to comply with the procedures or reporting requirements for abortions?

An attending physician who performs an abortion but knowingly fails to provide the required information, offer an ultrasound, or report the abortion as described above (i) may be subject to professional discipline; (ii) shall be fined $100 for each month of noncompliance; and (iii) may be subject to civil contempt sanctions.⁵² In addition, physicians who fail to timely submit the report containing information concerning post-fertilization age may be subject to a $500 fine for each 30-day period the report is late.⁵³

15. Are physicians, hospitals, or other facilities required to perform abortions?

Under Idaho law, no healthcare professional shall be required to render any healthcare service that violates his or her conscience,⁵⁴ provided that (i) the professional may not engage in illegal discrimination;⁵⁵ and (ii) in a life-threatening situation, the professional must provide treatment and care until an alternate healthcare professional capable of treating the emergency is found.⁵⁶ Similarly, hospitals may generally elect not to furnish facilities or admit patients for abortion,⁵⁷ but they may still be obligated to comply with laws such as EMTALA that require appropriate emergency care or treatment of patients who have been admitted.

16. Does EMTALA preempt Idaho abortion law?

As discussed above, HHS takes the position that, when EMTALA applies, EMTALA preempts contrary state laws such as Idaho’s abortion statute. As discussed above, EMTALA generally requires hospitals to provide stabilizing treatment to patients with an emergency medical condition who come to the hospital seeking emergency care.⁵⁸ If a pregnant woman has an emergency medical condition (i.e., one that requires immediate medical attention to avoid placing the health of the woman in serious jeopardy, serious impairment to bodily function, or serious dysfunction of any bodily organ or part⁵⁹) the hospital must provide stabilizing treatment or an appropriate transfer. Stabilizing treatment is that which is necessary to ensure that “no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility….”⁶⁰ According to HHS, “[s]tabilizing treatment could include medical and/or surgical interventions (e.g., abortion, removal of one or both fallopian tubes, anti-hypertensive therapy, methotrexate therapy, etc.), irrespective of any state laws or mandates that apply to specific procedures.”⁶¹

The DOJ has filed suit to confirm that EMTALA preempts Idaho’s total abortion ban when applied to women with an emergency medical condition seeking care at a hospital.

¹I.C. § 18-604(1). In their pending lawsuits, Planned Parenthood argues that “clinically diagnosable pregnancy” is unconstitutionally vague.

²I.C. §§ 18-502(9) and 18-604(5).

³Before August 25, 2022, Idaho’s new fetal heartbeat statute is likely effective. See I.C. § 18-8801 et seq.

⁴I.C. § 18-622(3). The statute is structured so that the exceptions constitute an affirmative defense to the crime of criminal abortion, presumably placing the burden on the defendant to establish the defense. Id.

⁵I.C. § 18-613. “Partial-birth abortion” means “(i) Deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the physician knows will kill the partially delivered living fetus; and (ii) Performs the overt act, other than completion of delivery, that kills the partially delivered living fetus. Id. at § 18-613(2)(b).

⁶I.C. § 18-622(2). A separate statute also subjects healthcare professionals to a fine of at least $1,000 for a first offense; at least $2,500 for a second offense; and (iii) at least $5,000 for a third offense (I.C. § 18-605(2). Although it is not entirely clear, these fines are likely preempted by the remedial scheme established in I.C. § 18-622(2).

⁷I.C. § 18-606(1).

⁸I.C. § 18-622(2).

⁹I.C. § 18-622(5).

¹⁰I.C. § 18-606(2).

¹¹Idaho Code § 18-8803 requires that the person performing the abortion must first attempt to determine whether a fetal heartbeat is present and record such determination in the woman’s medical record along with the gestational age of the preborn child, the method used to test for the fetal heartbeat, the date and time of the test, and the results of the test.

¹²I.C. § 18-8807(1).

¹³I.C. § 18-8801(5).

¹⁴I.C. § 18-8804(b).

¹⁵I.C. § 18-8804(a).

¹⁶I.C. § 18-8807(3).

¹⁷I.C. § 18-8807(1)(a)-(c).

¹⁸I.C. § 18-8807(4).

¹⁹In addition to the fetal heartbeat law, other Idaho statutes allow for civil lawsuits in the case of certain abortions, including those performed in violation of the 20-week abortion ban, partial-birth statute, or chemical abortion statutes. (See, e.g., I.C. §§ 18-508; 18-613(3), and 18-618(1). It is not clear whether or to what extent the fetal heartbeat statute supersedes the other statutes allowing civil lawsuits.

²⁰I.C. § 18-608A.

²¹I.C. § 18-603.

²²I.C. § 18-606(1); see also I.C. § 18-603.

²³I.C. § 18-606; see also I.C. § 18-603.

²⁴I.C. § 18-608(1). In McCormack, the Ninth Circuit held that the requirements that the clinic be “properly” staffed and equipped and have “satisfactory” transfer agreements with hospitals is unconstitutionally vague and unenforceable in a criminal action. 788 F.3d at 1030-31.

²⁵I.C. § 18-608(2)-(3).

₂₆I.C. § 18-617(a).

²⁷I.C. § 18-607.

²⁸I.C. § 18-617(2)-(3).

²⁹I.C. § 18-622(3).

³⁰I.C. § 18-622(3)(a)(ii).

³¹Letter from Xavier Becerra to Health Care Providers dated 7/11/22, available here.

³²42 U.S.C. § 1395dd(e)(1)(A).

³³Becerra Letter

³⁴See I.C. § 18-622.

³⁵I.C. § 18-504(1).

³⁶I.C. § 18-609(1).

³⁷I.C. § 18-610.

³⁸I.C. § 18-609(4).

³⁹I.C. § 18-609(5).

⁴⁰I.C. § 18-609(5).

⁴¹I.C. § 18-609(6).

⁴²I.C. § 18-617(c)-(d).

⁴³I.C. § 18-8803.

⁴⁴I.C. § 18-8805(4).

⁴⁵I.C. § 18-8807(4).

⁴⁶I.C. § 18-609A(1).

⁴⁷I.C. § 18-609A(2).

⁴⁸I.C. § 18-609A(7).

⁴⁹I.C. § 18-614.

⁵⁰I.C. § 39-261(a).

⁵¹I.C. § 18-609(7).

⁵²I.C. §§ 18-506(3) and 18-609(9).

⁵³I.C. § 18-506(3).

⁵⁴I.C. § 18-611(2).

⁵⁵I.C. § 18-611(5).

⁵⁶I.C. § 18-611(6).

⁵⁷I.C. § 18-612.

⁵⁸42 U.S.C. § 1395dd(c).

⁵⁹42 U.S.C. § 1395dd(e)(1)(A).

⁶⁰42 U.S.C. § 1395dd(e)(3)(B).

⁶¹Becerra Letter