Abortion is mostly illegal in Idaho. Here are the state’s laws, explained

Abortion is now mostly illegal in Idaho.

On Thursday, the state’s “trigger law” — prompted by the U.S. Supreme Court’s reversal of federal abortion protections — went into effect, making it a crime to perform an abortion, with few opportunities for defense.

Since the Supreme Court’s decision this summer, multiple lawsuits challenging Idaho’s abortion restrictions so far have been unsuccessful at completely blocking the laws, which include both criminal and civil enforcement mechanisms.

Here’s a breakdown of Idaho’s abortion laws and where they stand today.

Idaho criminalizes all abortions

Idaho’s “criminal abortion” statute — which the Legislature codified in 2020 — makes it a felony to perform, or attempt to perform, an abortion at any stage of pregnancy.

According to the law, abortion is the intentional termination of a pregnancy, with knowledge that the termination will, “with reasonable likelihood,” cause the death of an “unborn child.” Birth control is not considered abortion under the law.

Criminal abortion by a medical provider carries a minimum prison sentence of two years, and a maximum of five. Additionally, physicians who commit a criminal abortion will have their professional license suspended for six months on the first offense and permanently revoked on the second, the law says.

Someone who performs the procedure may escape prosecution for criminal abortion in three ways: if the pregnancy was the result of incest or rape or if the procedure was “necessary to prevent the death” of the pregnant person.

Rape or incest cases only qualify as defenses to criminal liability if the abortion providers prove they saw a copy of a police report documenting the incest or rape.

U.S. District Judge Lynn Winmill late Wednesday also ruled on another notable exception — at least, a temporary one. The trigger law will not immediately apply to hospital physicians in emergency situations, when an abortion may save a pregnant person’s life or prevent serious harm.

Federal law requires that hospitals receiving Medicare funding “provide necessary stabilizing treatment” to patients experiencing a medical emergency. The U.S. Department of Justice this month asked a federal court to permanently block the state’s outright abortion ban, to the extent it conflicts with the federal treatment requirement.

Winmill on Wednesday granted the Justice Department’s request for a preliminary injunction, meaning the state cannot prosecute physicians — or strip them of licenses — for providing emergency abortions until the case is settled.

The judge also wrote that the Justice Department’s case “will likely succeed” on its argument that the federal law supersedes state law.

Idaho’s ‘fetal heartbeat’ law

Another Idaho law — which has been effective for six days, since Friday — prohibits abortions after a “fetal heartbeat” has been detected. But the law that criminalizes abortion at all stages is more restrictive, and therefore takes precedence over the “fetal heartbeat” law.

There is, however, a civil enforcement mechanism within the “fetal heartbeat” law that remains effective. It allows family members of a fetus to sue a health care provider who performs an abortion after the electrical activity has been detected.

Idaho law defines a fetal heartbeat as cardiac activity or “the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.” Doctors have said the latter could be signs of electrical pulses from cells beginning to form a heart. Such signs emerge around six weeks of pregnancy and before many people even know they’re pregnant.

According to the civil action law, a father, grandparent, sibling, aunt or uncle can seek at least $20,000 in damages from a medical provider who “knowingly or recklessly” performed, or attempted to perform, an abortion following the detection cardiac or electrical activity.

The “fetal heartbeat” law provides an exception for an abortion performed during a “medical emergency,” which is defined as a complication that necessitates an abortion to avert the death or “irreversible impairment of bodily function” of the pregnant person.

The law does not allow a father who impregnated the mother through rape or incest to seek damages. It does, however, give his parents, siblings, aunts and uncles standing to sue.

The civil action exists independently of any criminal action, so a medical provider can be sued even if criminal prosecution for the abortion is not pursued.