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Posts published in “Day: February 5, 2021”

This year in abortion


At the Idaho Legislature this year, abortion is back, because of course it is: Abortion bills are an evidently unbreakable annual tradition at the Idaho Statehouse.

This year there are two, so far. The first of them, House Bill 17, is aimed at blocking use of any state or local government resources in any way, shape, or form to “support the abortion industry.” It has some issues.

There are a few more with the second abortion measure, House Bill 56, from Representatives Heather Scott and Ron Nate, intended “to protect the Idaho state government and any political subdivision in Idaho from being directed by any federal law or federal court opinion to allow abortions in Idaho.” It can’t really do that, since federal laws and rules generally override the state’s, but its backers could argue that changes at the Supreme Court could alter federal directives. Or maybe this bill is intended to provide a case to give the high court the opportunity to do so.

Either way, it bears a look.

It defines “abortion” - performance of which “shall be unlawful” - as “the use or prescription of any instrument, medicine, drug, or any other substance or device to intentionally kill an unborn human being.” The latter term is defined as, “the offspring of human beings from the moment of conception until either live birth or death, including the human conceptus, zygote, morula, blastocyst, embryo, and fetus, whether conceived or located inside or outside the body of a human female.”

Considering that vast numbers of microscopic post-conception organisms die in the ordinary biological process of early pregnancy, a lot of weight here gets put on “intentional”: Who exactly knew what and when? That could get complicated.

The state’s attorney general would be directed to “monitor” enforcement of the law and “shall direct state agencies to enforce this chapter in relation to abortion regardless of any contrary or conflicting federal statutes, regulations, executive orders, or court decisions.” Again, the attorney general’s office is likely to have a few concerned words to say about this, including the fact that it does not administer or control any state agencies outside its own; it’s job is providing legal advice (albeit routinely ignored by the legislature) and representing the state in court.

The bill provides that, “All prosecuting attorneys shall have the authority to extend immunity to a mother when she assists in the investigation or prosecution of any person for conduct relating to the abortion that killed her own unborn human being.” Shall we count the ways this provision - involving pressure to turn in someone, anyone - could be abused?

Then there’s this provision: “Any medical practitioner attempting to save the life of a pregnant patient, which attempt results in the unintended death of an unborn human being, shall not be found guilty of violating the provisions of this chapter.” That could be the provision which undercuts everything else, since a physician presumably would always be able to argue that his or her work with a patient is always involved in saving their life.

But if it’s not intended to be such an absolute defense - as presumably Scott and Nate would not have planned - then some kind of restriction would be needed so that all physicians wouldn’t be given a legal pass. Writing language to do that without endangering the lives of patients, or the licenses and freedom of physicians, is beyond tricky: It has defeated many, many efforts before.

There’s also this: Although immunity is granted to patients who turn in a physician (or presumably others involved) under certain conditions, and to physicians acting to save a patient’s life, there’s no immunity here for a patient whose life is in danger. Would self-defense - of a woman against a zygote - constitute a legal defense?

The bill was introduced on January 28 and referred to the House Ways and Means Committee, a leadership panel that sometimes has been known as a graveyard for measures leaders would just as soon not see hit the House floor.

But if it did so allow, the vote and the debate might be interesting, as long as legislators were fine with paying for the defense of yet another bill destined for a judicial branch circular file.