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Welcome to post-Roe Idaho


Idaho’s anti-abortion forces have waited a long time for the abortion ruling the U.S. Supreme Court delivered last week. Now they can outlaw abortion in Idaho, more or less absolutely.

But that’s not nearly the end of the story. Not close.

Abortions happen because a woman has made a determined choice, almost never lightly considered, and a few lines in the state code won’t be enough to stop them. In places like Poland the numbers of women obtaining abortions dropped only slightly after a sweeping ban was imposed. Clinics providing abortions in Idaho (never numerous) are shutting down, but there are options: travel out of state, communication with out of state health providers, and delivery or travel to obtain pills. Three of Idaho’s border states – Washington, Oregon and Nevada – are emphatically abortion-legal states.

You can expect the next legislature will get busy on this. I’m waiting, for example, for the return of legislation (tried before but failed up to now) to declare abortion is murder, and require it be prosecuted as such.

But more attention may go to the question of how to effectively enforce the ban, to make it more than just words in a statute. That subject is getting discussion around the country, and you can be sure Idaho legislators are listening.

One possibility – President Joe Biden has alluded to it – is a ban on Idaho women who are pregnant traveling to states where abortion is legal (such as the three aforementioned). But that begs the question of enforcement.

Do we see checkpoints at the border – maybe on the interstates, to stop pregnant women from leaving the state? Will women be forced to take pregnancy tests at the border? How about the dirt roads leading from Idaho into Oregon and Washington, or the Montana, Utah and Wyoming borders, through which someone could pass to an abortion refuge state? And air travel: How can Idaho monitor not only the commercial airports but also its many landing strips? Passenger buses?

Might Idaho charge with criminal offenses some of the medical or other people in other states who provide prescriptions or services (or travel assistance), or information about where they’re available? Might Idaho try to extradite people from those states? (Don’t expect much success with that, though it could become a bitter flash point.)

Will Idaho try to regulate speech about it? If a person who posts on Facebook about abortion services in Washington or Oregon or Nevada, would that be a criminal offense – or basis for a lawsuit? As one national story suggested, “a looming confrontation over whether the First Amendment allows censoring speech about a medical procedure that will become illegal in much of the country … National Right to Life Committee, recently proposed model legislation for states that would make it a crime to pass along information ‘by telephone, the internet or any other medium of communication’ that is used to terminate a pregnancy.”

What about pills sent through the mail or other delivery services (UPS, FedEx)? Trying to break the security of the US mail would be difficult (at least pending a change in presidential administration), but someone might try. How about the private services, which have promoted themselves as secure? How would they react if state officials started snooping through their packages? How would customers generally react?

Will the state start looking into medical records to find anyone who becomes pregnant? One news story discusses a “new government database tracking people’s pregnancies in Poland is sparking fears that medical data will be used to prosecute women who obtain abortion care in other countries or by getting abortion pills through the mail, and potentially to target women who have miscarriages.” Might that be coming to Idaho?

If you think that some or even most of these things may not happen, you could be right. Maybe. But before you dismiss them, pause to reflect on what a careful, moderate group are the members of the Idaho Legislature, which has another regular session coming up in another few months.

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