Are out-of-state abortions in trouble? How Idaho laws may apply to procedures elsewhere
Nicole Blanchard, Idaho Statesman
BOISE (Idaho Statesman) — In the wake of the U.S. Supreme Court overturning landmark abortion rights cases, triggering an Idaho ban on the procedure, abortion rights advocates like Planned Parenthood have vowed to help Idahoans travel to other states to have an abortion. Washington Gov. Jay Inslee even pointed to his state as an option for Idahoans while signing a law earlier this year that solidified abortion access.
But some legal experts say without federal abortion protections, the U.S.’s state-by-state patchwork of laws could leave some women at risk if they travel out of state for the procedure.
Legal experts told the Idaho Statesman while it’s unlikely Idaho’s existing laws could be leveraged against residents who get abortions out of state, many of the legal details are still unclear. That could mean court cases to establish precedents or moves by state lawmakers to directly address out-of-state abortion procedures.
WHAT DO IDAHO LAWS SAY ABOUT PROSECUTING ABORTION?
Abortion trigger law
Idaho will soon have two major laws that restrict abortions — though both are being challenged in the state’s Supreme Court by Planned Parenthood. The broadest is a trigger law on the books since 2020, which will take effect 30 days after the overturning of Roe v. Wade is final, likely next month.
That legislation would make it a felony for health care providers to perform abortions, with a few exceptions: in documented cases of rape or incest, or if the life of the mother is in danger. Medical professionals could face two to five years in prison and a medical license suspension of six months for a first offense. A second offense would earn them a permanent medical license ban.
The law specifically prevents criminal penalties against the person on whom the abortion is performed.
Dave Adler, a constitutional scholar and president of the Idaho Falls-based nonprofit Alturas Institute, told the Idaho Statesman that statute is focused on health care professionals and is unlikely to affect out-of-state abortions. A health care provider in Washington, for example, could not get sued on the basis of Idaho laws.
Mistie DelliCarpini-Tolman, Idaho state director for Planned Parenthood Alliance Advocates, said her organization stands ready to help Idaho residents get abortions even after the procedure is banned here.
“There is nothing that makes it illegal to cross state lines to have an abortion, nor are there any penalties for helping someone to cross state lines to get an abortion,” DelliCarpini-Tolman said in a news conference on the day Roe v. Wade was overturned.
Civil penalty law
Another Idaho law lets certain family members of the fetus sue abortion providers for a minimum of $20,000. The state Supreme Court put that law on hold pending a Planned Parenthood lawsuit.
DelliCarpini-Tolman specifically pointed out that the Idaho legislation lacks an “aid and abet piece” that’s in Texas legislation, which allows private citizens to file a lawsuit against people who help others procure abortions.
Without the “aid and abet” part in the law, even if it’s implemented, no Idaho resident can get sued for helping someone travel out of state.
“The omission of the ‘aid and abet’ language is key,” Adler agreed.
Adler said the penalties of the trigger law “means no Idaho physician would risk performing an abortion.”
Idaho’s legal definition of murder specifies “the unlawful killing of a human being including, but not limited to, a human embryo or fetus.” Adler said the use of the phrase “unlawful killing” protects doctors who perform abortions.
“By virtue of the fact that Idaho law permits abortion in its (trigger) statute in cases of rape and incest, and when a woman’s life is in danger, those would not qualify as unlawful killings,” Adler said.
Adler said women “should not be unduly worried” about leaving the state to undergo an abortion. A Washington health care provider, for example, could not get sued on the basis of Idaho laws.
“There’s no law yet that prohibits women from traveling out of state, and if the Idaho Legislature were to look in that direction, it would open a great can of worms,” Adler said, citing the federally established right to move freely between states.
Jim Jones, a former Idaho Supreme Court justice and state attorney general, also told the Statesman it would be “a stretch” to charge people who terminate their pregnancies with murder.
But in a paper published earlier this year, Drexel University law professor David Cohen and coauthors Greer Donley and Rachel Rebouché outlined scenarios in which the 22 states that appear ready to ban abortion could try to leverage their own laws against residents who undergo the procedure in other states.
Cohen’s paper proposed one scenario in which pregnant people could be charged with murder in their home state for having abortions elsewhere. Cohen said he couldn’t speak specifically to Idaho’s laws but noted that the Republican-dominated Idaho Legislature stands in sharp contrast with Washington’s promise to protect abortion access.
“I do think the Idaho-Washington border is one of the places where we might see (potential legal issues) only because we have a very conservative, very anti-abortion state near a very liberal state,” Cohen said.
Cohen said most topics in which state laws diverge — like gambling, marijuana and fireworks — don’t inspire the kind of fervor abortion does.
“(In the past) people went to Las Vegas or Atlantic City to gamble and nobody thought, ‘Oh my state prosecutor is going to charge me because I’m going to gamble,’ ” Cohen said.
‘AGGRESSIVE PROSECUTORS’ COULD PURSUE CHARGES
Shaakirrah Sanders, a law professor at the University of Idaho, told the Statesman in a phone interview that the U.S. Supreme Court’s decision will create a lot of uncertainty as states try to determine what their laws mean in relation to one another.
“There are lots and lots of concerns about the different impacts this will have on those that become pregnant, with regard to criminal law and cross-jurisdictional criminal law,” Sanders said. “These types of jurisdictional questions are largely unsettled in U.S. law in a lot of areas.”
Sanders said she expects to see many of these murky issues settled by state supreme courts. Currently, she said, there isn’t a lot of precedence for prosecuting Idaho residents for taking part in activities in other states that are illegal in Idaho.
“In terms of punishing Idahoans for activities out of state, there’s a growing list now of things Idahoans can do in other states that they can’t do in their state,” Sanders said.
But even if Idaho doesn’t explicitly allow for someone to be prosecuted in the event of an out-of-state abortion, Cohen said some prosecutors could forge ahead regardless.
“That doesn’t mean there won’t be an aggressive prosecutor trying that,” he said. “Aggressive prosecutors try things that aren’t supported by the law all the time.”
It’s also possible that the Idaho Legislature could create laws specifically addressing out-of-state abortions. The Statesman reached out to several legislators — including Rep. Brent Crane, R-Nampa; Rep. Megan Blanksma, R-Hammett; and Rep. Steven Harris, R-Meridian — who have sponsored recent legislation restricting abortion access to see if they intend to pursue laws on out-of-state abortions. None of the legislators responded.
Blaine Conzatti, president of the Idaho Family Policy Center, which helped craft Idaho’s most recent abortion law allowing family members to sue abortion providers, told the Statesman on June 24 that the organization will “use every legal avenue available to us to ensure that pre-born children in the state of Idaho receive the same constitutional protection that every other person is accorded.” Conzatti did not respond to an email asking if the Family Policy Center has specific plans to address out-of-state abortions.
Cohen said he expects conservative states across the U.S. to try to enact even stronger punishments for abortion.
“I don’t think the anti-abortion crowd will be satisfied knowing they’ve displaced abortion from one place to another,” Cohen said. “Their goal is to end abortion.”