April 2023 Update
March 2023 Update
Proposals restricting access to reproductive care
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.
as of July 2022
Trigger Law Statutory Cite(s)
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?
Are there any penalties in this law that could apply to ART procedures?
- “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?
What is the “trigger” for this law to take effect?
- 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.