Idaho legislators pass contentious bill that adds clarification language to abortion ban

BOISE (Idaho Capital Sun) — Although nearly every person who spoke acknowledged it was inadequate, Idaho’s House Republicans voted nearly unanimously to pass a bill meant to help ease physicians’ fears about being prosecuted under Idaho’s abortion laws while providing care.

Just one of the House’s 11 Democrats voted no on the bill as the others walked out of the chamber prior to the vote.

The House’s State Affairs Committee printed House Bill 374 on Tuesday and held a hearing Wednesday afternoon. In a quick turnaround, since the Legislature aims to recess at the end of this week, the House suspended rules to take up the bill on the floor after the committee adjourned. It now heads to the Senate for consideration.

The bill is a version of House Bill 342, which the committee tabled March 20 after criticism from Idaho Republican Party Chairwoman Dorothy Moon. That bill included many changes to Idaho’s existing abortion ban, and it was crafted in consultation with the Idaho Medical Association.

House Affairs Chairman Brent Crane, R-Nampa, said it wasn’t the bill he wanted to come out of the session either, but something had to be done.

“This is the bill we’re going to have to advance. We’re going to make this first step,” Crane said during the hearing. “It’s not the end. It is the start of where the state of Idaho is going to wrestle with this question.”

New version eliminates language about considering potential health complications

The new version includes nearly all of the same content but eliminated a key provision that Democrats protested — one that allowed physicians to consider potential health complications that would occur without an abortion.

The sentence in question would have added the treatment of a physical condition that, if left untreated, would be life-threatening to the pregnant person.

Democratic legislators in committee and on the House floor said the new bill will do nothing to prevent physicians from leaving the state and clinics from shuttering obstetrics services because the laws make it even more difficult to recruit and retain physicians. Derek Farr, communications director for the Idaho House and Senate Democrats, said the group walked out because they were angry and frustrated.

“If this is supposedly the fix, then the women of Idaho are in real trouble,” said Rep. Ilana Rubel, D-Boise, during the debate. “I don’t want to be part of a charade that fixes nothing.”

The bill includes language stating that birth control methods, including the pill and IUDs, are not considered violations of the state’s abortion law. It also states that the removal of a dead fetus or the removal of ectopic or molar pregnancies, which occur when a fertilized egg implants in an area outside of the uterus, are not considered abortions.

It also changes a physician’s actions to prevent a pregnant person’s death from an affirmative defense, which would be used in court after charges are filed against a medical professional, to an exception.

Dr. Lauren Miller, a maternal fetal medicine specialist in Boise, said the language in the original bill would have allowed physicians to determine whether a condition could lead to death within a certain amount of time rather than compelling doctors to use the safest interpretation.

“We have to interpret that very conservatively, because it’s a felony,” Miller said. “Imminent death is the only exception that we see out of this current version that was passed.”

Miller said situations like kidney or heart disease can be exacerbated by pregnancy, and lead to early death within a few years, or cause someone to need a heart transplant sooner than they otherwise would have because of the strain of a pregnancy. Even a patient with severe preeclampsia during the second trimester of pregnancy could be a gray area, Miller said.

“Right now, with a felony charge against you and no further clarity, we can’t act until we truly believe you’re dying,” she said. “Otherwise, I’ll have to transport you out of state.”

Transporting a patient to a hospital out of state is expensive for the patient and the health care system, Miller said, and the patient can deteriorate further during the trip.

Legislator: If we can’t get this done this year, it won’t happen in 2024

Legislators acknowledged more work will need to be done in the 2024 legislative session, but Rep. Brooke Green, D-Boise, said she didn’t think that was realistic given that 2024 is a presidential election year.

“This is the year to fix it,” Green said. “If we can’t fix it in a non-election year, I guarantee you we’re not going to be able to fix it next year.”

Miller said she appreciates that legislators acknowledged more needs to be done and this isn’t the end of the discussion, but she said physicians such as herself have been reaching out to legislators since July 2022 with little response.

“I’m disappointed that none of those legislators have taken the opportunity to talk directly to us as physicians,” Miller said. “And now they’re trying to make it look like something happened, when in fact, this makes no meaningful change for my day-to-day life as a physician.”