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Next year’s crop


Last Wednesday’s oral arguments at the U.S. Supreme Court on, in effect, the future of Roe v. Wade left little doubt the long-standing court decision (mostly) legalizing abortion nationwide will be eliminated either formally or as a matter of practice.

That will of course have many impacts around the country, and people in Idaho may start to consider the effects in the Gem State. Because there will be some.

It’s true that what we have now are only the spoken arguments from the parties and questions and comments from justices, in the case concerning the constitutionality of a Mississippi state law banning abortions after 15 weeks, a point at which many pregnant women aren’t yet aware they’re pregnant. Roe bars states from banning abortion, generally, in the first trimester. The new state law clearly runs afoul of Roe and the standards for interpreting it that the Supreme Court has earlier upheld. The law can be declared constitutional only if Roe either is re-interpreted to the point of becoming an empty shell, or if it is tossed entirely. A majority of the court seems determined to do one or the other.

We may not know for some months exactly what the court will do. But when the Idaho Legislature returns in another month, it will be eager to jump in. Few legislatures in the country have been more consistently or eagerly anti-abortion than Idaho’s. The presence of Roe on the books hasn’t stopped Idaho legislators from tackling the subject repeatedly over the decades.

Pre-Roe, Idaho had on its books a law criminalizing both abortion and even attempting to obtain one. Roe essentially quashed that law, but within a few years the pro-life movement developed a whole long string of proposed pieces of legislation aimed at undermining Row bit by bit. These measures came in small pieces, some killed by legal challenges but others surviving or going unchallenged.

The effect over time was to make abortion highly difficult to obtain in Idaho.

As of the start of 2021, according to the Guttmacher Institute, Idaho imposes among other things these regulations: “Health plans offered in the state’s health exchange under the Affordable Care Act can only cover abortion in cases of life endangerment, or in cases of rape or incest…. A patient must receive state-directed counseling that includes information designed to discourage the patient from having an abortion, and then wait 24 hours before the procedure is provided…. Private insurance policies cover abortion only in cases of life endangerment, unless individuals purchase an optional rider at an additional cost. … The parent of a minor must consent before an abortion is provided. … Public funding is available for abortion only in cases of life endangerment, rape or incest. … An abortion may be performed after viability only if the patient’s life is endangered.”

As recently as April, the legislature passed (in echo of legislation elsewhere) a “heartbeat ban,” prohibiting abortions as soon as a heartbeat can be detected.

And, of course, there’s a state law banning abortion outright if Roe is reversed.

The specifics of what that would mean aren’t all settled. In recent years there’s been a proposal to require that abortions be treated in the law – and must be prosecuted as – criminal homicides, typically as murder. That one hasn’t gotten through the legislature, but will 2022 be the year?

Almost certainly someone at the Idaho Statehouse will be proposing Texas-style bounty hunter legislation, so get ready for that.

These may be only the beginning.

There’s one other abortion precedent that shouldn’t be forgotten, however.

In 1990, at a point when legislative activism against abortion was far quieter than in the last couple of decades, the Idaho legislature passed a bill widely described (at the time) as the strictest anti-abortion measure anywhere in the country.

It was a sweeping bill, seeking to change the abortion picture not in droplets here or there but at a big, fell swoop. After clearing the legislature, it was vetoed by Governor Cecil Andrus.

No one knew for sure what the political impact would be. Andrus was up for election that year. And abortion was a centerprice issue that election, all right.

Andrus won in a landslide. Democrats had their best election since 1968, or in the years since, and several key advocates of the bill were defeated.

Times have changed. How much, we may soon learn.

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