Fact check: Are claims about Prop 1’s abortion changes accurate?
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Nicole Blanchard and Sarah Cutler, Idaho Statesman
BOISE (Idaho Statesman) — An Idaho ballot measure that would rewrite the state’s strict abortion laws and enshrine protections for other reproductive healthcare is one of the hottest topics of pre-Election Day debate in the Gem State, with millions of dollars flooding in from supporters and opponents.
RELATED | PACs for and against Prop 1 raise more than $2.5 million in the last two weeks
Its proposed changes to Idaho abortion restrictions have prompted frequent TV ads from the Too Extreme for Idaho political action committee that say Proposition 1, which would legalize abortion up to fetal viability and after in cases of medical emergencies, would in fact go much further.
They’ve called the ballot measure a “bait and switch” that would allow “late-term abortion on demand,” allow non-physicians to perform abortions, and let minors get abortions without their parents’ approval.
Melanie Folwell, executive director of the political action committee Idahoans United for Women and Families, which drafted the proposed legislation and collected thousands of signatures in support of it, said those claims deliberately misrepresent the actual language of the ballot measure to mislead voters.
So, how far would Prop 1 really go — and are opponents’ concerns legitimate? We reviewed the text of the initiative and asked independent legal experts to weigh in.
Claim 1: Prop 1 will allow late-term abortions
What Prop 1 says:
This act establishes a right to make private reproductive health care decisions, including abortion up to fetal viability.
Prop 1 defines “fetal viability” as the point in a pregnancy when the fetus “has a significant likelihood of sustained survival outside of the uterus without extraordinary medical measures.”
Prop 1 does not define the term “extraordinary medical measures.”
What opponents say:
In a statement on the Idaho Secretary of State’s website, Prop 1’s opponents defined the term “extraordinary medical measures” to mean the “assistance of oxygen (or) nutrition.” In other publications, they have said that “extraordinary measures” would include time in the neonatal intensive care unit or on a ventilator — measures that many premature babies require.
Based on this understanding, opponents have argued that Prop 1 views a fetus as non-viable until very late in a pregnancy — perhaps as late as the seventh or eighth month, when it could survive outside the womb without those routine measures. They have argued that Prop 1 thus allows “unrestricted late-term abortion.”
What experts say:
Prop 1’s opponents are incorrectly defining the term “extraordinary medical measures.”
The Oxford Medical Dictionary defines these measures as: “Life-prolonging treatments that are not regarded as beneficial” — that is, they “do nothing to promote recovery or relieve suffering.”
“Extraordinary” does not refer to “unusual” treatment, according to that dictionary. Instead, it refers to treatment that is “no longer clinically effective” or is “considered futile.”
All of the Idaho Hospital Association’s providers adhere to this definition, said Serena Dazzio, a spokesperson for the association.
The American College of Obstetricians and Gynecologists defines fetal viability as the period from week 20 to nearly 26 weeks of gestation — though it notes that viability depends on many complex factors, including sex, genetics and the circumstances around delivery.
The meaning of the phrase “extraordinary medical measures” is ultimately a medical question, said Dave Leroy, who served as Idaho’s lieutenant governor in the 1980s and its attorney general in the ‘90s. But he told the Statesman that, if Prop 1 were to pass, the “relative uncertainty and untested nature” of the term would “invite months and perhaps years of litigation.”
Claim 2: Prop 1 will let non-physicians perform abortions
What Prop 1 says:
In no case may reproductive health care provided consistent with this act by a health care provider be a basis for professional discipline, civil liability, or criminal liability as to a health care provider solely on the basis that the health care provider knowingly advised, assisted, facilitated, informed, referred or otherwise aided a person in exercising their right to reproductive freedom and privacy.
Prop 1 defines a “health care provider” as a licensed person or an entity that provides health care or medical treatment.
What opponents say:
In their official statement against Prop 1, opponents — including organizations such as the Idaho Family Policy Center and the Roman Catholic Diocese of Boise — write that Prop 1 “eliminates the longstanding safety requirement that only doctors can perform abortions. It replaces ‘physician’ with the vague term ‘health care provider.’ This even includes people who aren’t doctors — such as abortion clinic employees.”
What experts say:
Legal experts offered diverging opinions of how courts would interpret Prop 1’s language on this issue.
Jim Jones, who previously served as Idaho’s attorney general and as the chief justice of the Idaho Supreme Court, called this concern “baloney.” It would be a “criminal offense” under existing Idaho law, he said, for a non-doctor to perform an abortion.
Folwell made a similar case: Under Idaho law, she said, providers must be licensed to provide certain kinds of care — and if they do so without a license, that is malpractice.
The intent of this section of Prop 1, Folwell told the Statesman, is to remove the legal liability for people — including nurses or social workers — who may play even an ancillary role in a patient getting an abortion.
Under Idaho law, if you help someone get an abortion “in any way, shape or form,” Folwell said, “you are liable for criminal penalties, civil penalties and loss of licensure.”
“That is what we are referring to,” she said.
Leroy, though, said that trying to confine a change of terms to only one section of the initiative is “legally suspect.”
Claim 3: Prop 1 will let minors get abortions without parents’ consent
What Prop 1 says:
Every person has the right to reproductive freedom and privacy, which is the right to make personal decisions about reproductive health care that directly impact the person’s own body.
The provisions of this act are to be liberally construed in favor of reproductive freedom and privacy and are intended to control over any other section of Idaho Code.
What opponents say:
“Prop 1 creates a right to abortion for ‘every person’ regardless of age, making abortion the only procedure that could be performed on a child without parental involvement,” opponents argued on the Idaho Secretary of State’s website. “Prop 1 also contains a provision that would override other state laws, including parental consent requirements.”
Attorney General Raúl Labrador shares this concern, a spokesperson for his office told the Statesman.
What experts say:
Claims that Prop 1 would override parental consent laws are “patently false,” according to a legal review that Idahoans United for Women and Families sought from Pocatello law firm Merrill & Merrill. The organization asked for the legal review to ensure that Prop 1 left Idaho’s medical parental consent laws “untouched,” Folwell told the Statesman.
The firm found that, if passed, Prop 1 would need to be read alongside laws that require explicit parental consent for medical procedures for minors — including a law that specifically makes it illegal to provide an abortion to a minor without consent from a parent or legal guardian, according to copies of the review Folwell shared with the Statesman.
But Leroy called Prop 1’s attempt to “control over any other section of Idaho Code” “utterly novel” — and problematic. In typical legislation, if something is going to amend a section of the Idaho Code, the section that is being revised is specifically identified, he said.
“To suggest that something implicitly repeals every other section is something that the courts, in my opinion, would not typically favor,” Leroy said.
The American Civil Liberties Union of Idaho on its website said the “broad language” in this section “could interact with several areas of state code.”
“Legal issues arising from current parental consent laws would likely be resolved in the courts,” it said. The organization did not respond to a request for comment.
Folwell told the Statesman that Prop 1 was not written with the “intention” to override all other Idaho laws. “We narrowly tailored it to the aspects of Idaho Code … that deal with abortion,” she said.
The actual text of Prop 1, however, does not specify that it should take primacy only over abortion-related laws. If a case over the language were to come before a court, the lack of a public record — as there would be in a formal legislative process — would make it hard for a judge to incorporate the authors’ intent, said Lori Hausegger, a political science professor at Boise State University.
“They did open themselves up to be challenged on” this section, Hausegger said. “The language has left it open for these lawyers to be on either side making arguments.”
But as the uncertainty pertains to parental consent, she argued, it’s a non-issue. The Idaho Legislature would almost certainly pass legislation in response that would reinstate parental consent requirements for abortion if it deemed that necessary, she said.
It’s not a “huge point of concern,” she said.
Few experts weigh in on Prop 1
Finding independent legal experts to speak about what Prop 1 would do if passed is no easy feat.
The University of Idaho Law School, the only law school in the state, has only one faculty member open to speaking about the initiative — but she is on sabbatical and only intermittently available, said Chris Smith, a communications manager for the university.
Joy Prudek, a spokesperson for St. Luke’s, said the hospital system has “focused on voter education and providing accurate information about the Reproductive Freedom and Privacy Act.” However, she declined to answer questions about provisions of the initiative, instead referring the Statesman to the initiative’s “sponsors, opponents or independent legal experts.”
Former Attorney General Lawrence Wasden and spokespeople for the Saint Alphonsus Hospital System did not respond to requests for comment.
Read claims for and against Proposition 1 in the official Idaho Voter Pamphlet.