Idaho

August 17, 2023 Update

In July, two advocacy groups and an attorney who works with victims of sexual assault sued Idaho over a new law they claim makes it illegal to help minors get an abortion without parental consent. Idaho already bans abortion at all stages of pregnancy. In May, a new law was passed revoking the right of a minor to cross state lines for abortion care absent parental consent. The case contends that the new law is vague and violates a First Amendment right to discuss abortion with minors and a Fourth Amendment right to unrestricted interstate travel. Several states, including Washington, filed an amicus brief challenging the Idaho travel ban, arguing the new law is harmful and flooding Idaho’s neighboring states with individuals seeking care.

April 10, 2023 Update

On April 5, the state’s Republican governor signed into law a bill making it a crime for any adult to help a minor obtain an abortion without parental consent, including by traveling to a state where abortion is legal. This statute, which provides that an adult charged under the law faces up to five years in prison and gives legal standing to the minor’s parents, siblings, the person who impregnated the minor, and children of the minor, is expected to face legal challenges.

March 2023 Report

A ban has been enacted on in-state abortion care. The import of these bans for the practice of reproductive medicine and, specifically, the use of Assisted Reproductive Technology (ART) to build families, varies on a state-by-state level. While the majority of states’ abortion ban statutes are applicable in the context of a pregnancy, many state laws also include definitions stating that “personhood” begins at fertilization or even conception. Such definitions -- whether intentionally or not -- have the potential to implicate and even ban the use of ART, including in vitro fertilization (IVF), though some states have taken steps to carve this out as allowable. In a growing number of states, statutory restrictions severely limit access to abortion care and implicitly threaten the unhindered practice of reproductive medicine.

Proposals restricting access to reproductive care

As another example of states ramping up restrictions on access to reproductive health care, consider Idaho, where, post-Dobbs, abortion was legally banned with exceptions for rape, incest, or risk to the life of the pregnant person. Notably, Idaho and a handful of other states (e.g., MS, UT) only permits the rape and incest exceptions to take effect if the alleged crime has been reported to law enforcement, a requirement that fails to respect longstanding best practices and data regarding victimology and the need to respect a victim’s decision as to whether to report so as not to chill their willingness to do so. The reporting requirement also adds critical time to the ability to access abortion or mismarriage management care; this additional may make abortion unavailable even in these cases if the state has enacted a gestational ban.

Even with this existing ban in place, Idaho’s Republican lawmakers are taking additional, out-of-the-box steps to ensure abortion care is out of the reach of their constituents. One proposal under consideration expands the definition of “human trafficking” to include helping a minor obtain abortion care (Idaho HB 242, which a House committee voted to advance to the Senate on March 7, 2023.). The bill would prohibit “recruiting, harboring, or transporting” a person under the age of 18 to get an abortion or medication abortion, both within and outside of the state’s borders. Moreover, if the prosecuting attorney in a specific county refuses to do so, the legislation would authorize the state attorney general to prosecute an alleged violation of the law. Absent a legal defense (which includes parental consent), anyone who is found to have helped a minor access abortion care can be charged, under the proposed law, with human trafficking and could face between two-five years in prison. The proposal is vague on key points (for example, whether both parents must consent to trigger the exception to criminal penalties) and contains no exceptions. Despite this, the legislation advanced from the House to the Senate in early March and continues to work its way through the state house at time of publication.

June 2022 Report

Trigger Law Statutory Cite(s)

Trigger law: Criminal Abortion
Idaho Code Ann sec. 18-622
Definitions section: Idaho Code Ann. § 18-604.

Does this law have a potential impact on IVF/Reproductive medicine?

Why or why not?

The law should not affect IVF or other reproductive medicine services occurring outside the context of a pregnancy.
In defining pregnancy, the statute states that “the reproductive condition of having a developing fetus in the body commences with fertilization.” That creates some ambiguity, but presumably that would require both fertilization and the fetus being in the body.

Does this law explicitly reference IVF, assisted reproductive technology or reproductive medicine?

There are no explicit references to IVF or reproductive medicine services.

Are there any penalties in this law that could apply to ART procedures?

N/A

Relevant definitions

The trigger law does not have its own definitions section. The chapter definitions section defines terms relevant to reproductive care:

“Abortion” is defined as “the use of any means to intentionally terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child.” The definitions section explicitly exempts the use of an IUD or birth control pill to prevent ovulation, fertilization, or implantation of a fertilized ovum from the definition of abortion.
“Fetus” and “unborn child” are both defined to mean “an individual organism of the species Homo sapiens from fertilization until live birth.”
“Medical emergency” is defined to mean “a condition that, on the basis of the physician’s good faith clinical judgement, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.”
“Pregnant” and “pregnancy” are defined as “the reproductive condition of having a developing fetus in the body and commences with fertilization.”

Do the definitions/terms of the trigger law apply to other areas of state code?

The definitions apply throughout the chapter, which is part of the criminal code.

What is the “trigger” for this law to take effect?

Trigger law takes effect 30 days after either:

The Supreme Court issues an opinion restoring the authority to prohibit abortion in the state; or
The Constitution is amended to similarly return authority over the regulation of abortion to the states.

Key provisions: What does the law prohibit and when does it apply?

The Act criminalizes the activity of “every person who performs or attempts to perform an abortion.” Abortion is defined to mean the “use of any means to intentionally terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child.”
Individuals who perform or attempt to perform an abortion with the intent to terminate a pregnancy have committed the crime of “criminal abortion.”
The act outlines several affirmative defenses including an abortion performed by a physician who determined that the “abortion was medically necessary to prevent the death of the pregnant woman.” Such an abortion must be performed in such a “manner” that “provided the best opportunity for the unborn child to survive, unless… termination of a pregnancy in that manner would have posed a greater risk of death of the pregnant woman.”
It is also an affirmative defense if the abortion was performed on a woman or minor child who “reported the act of rape or incest” to the authorities.
Women who undergo or attempt to undergo abortions are shielded from any criminal conviction and penalty.

State Legislation and Reproductive Medicine

The ASRM Center for Policy and Leadership (CPL) has released reports concerning States' Abortion Laws and their Potential Implications for Reproductive Medicine. Current as of the date of publication, the reports provide an overview of states’ abortion laws, together with analysis of potential implications for reproductive medicine, including IVF.