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A nightmare for women in Idaho could be coming to all of us soon
There’s news from Idaho, and it’s not good. The only hospital in Sandpoint, Idaho, is terminating the provision of labor and delivery services. Sandpoint is the largest city in Bonner County, with just shy of 9,000 people. That may not sound like a lot, but in sparsely populated Idaho, it means that hundreds of women will be forced to deliver their babies at hospitals over an hour away, running the risk of out-of-hospital births and the higher mortality rates that accompany them. The hospital delivered 265 babies in 2022. That won’t happen in 2023 and future years.
In a statement on Facebook, Bonner General Health wrote that it was forced to take the step because of physician shortages and a downturn in births. Then it explained the context in which it was being forced to shut down its labor and delivery unit:
“Idaho’s legal and political climate - Highly respected, talented physicians are leaving. Recruiting replacements will be extraordinarily difficult. In addition, the Idaho Legislature continues to introduce and pass bills that criminalize physicians for medical care nationally recognized as the standard of care. Consequences for Idaho Physicians providing the standard of care may include civil litigation and criminal prosecution, leading to jail time or fines.”
By mid-May, less than two months from now, when the hospital stops delivering babies, women in parts of Northern Idaho will have to find another place to have their babies, incurring additional costs and separating them from loved ones weeks in advance of delivery to avoid medical emergencies. It’s not very pro-life.
But Idaho likes to think it is. After the Supreme Court ended constitutional protection for abortion, the state Supreme Court permitted a trigger law the state passed in 2020 and other measures to take effect. The result was a near-total ban on abortion. In August 2022, DOJ filed a lawsuit in Idaho, challenging the measure that criminalized abortion in almost all cases and subjected doctors who performed abortions to the risk of being indicted. The law authorizes felony charges punishable by two to five years in prison, as well as suspension or revocation of medical licenses.
Idaho law does have a narrow exception, allowing abortions that are necessary to save the life of a pregnant woman or because the pregnancy resulted from a rape or incest that was reported to law enforcement. But here’s the rub: if a prosecutor disagrees with a doctor’s assessment, the prosecutor can proceed with an indictment, bringing the full force of the criminal justice system to bear on the doctor. The doctor would have to defend themself at trial and put their hopes of avoiding incarceration on their ability to convince a jury that the procedure they performed was necessary under those limited exceptions.
It’s no wonder doctors don’t want to deliver babies in Idaho.
Dobbs, the case that rejected constitutional protection for abortion rights, was decided in June 2022. It stripped away the federal protections that until then had restricted states’ ability to engage in wholesale denials of access to the procedure. After Dobbs, the question of whether or not to protect abortion rights and people’s ability to make decisions about their own bodies was left up to the legislature in each state.
That’s how it became possible for some states—Idaho is not alone—to pass laws, including the draconian ones that criminalize the provision of or assistance in acquiring abortion services. The laws are designed to end access. Conservatives have been explicit about the goal. They want a nationwide ban on abortion. One way of moving in that direction is forcing doctors to risk prosecution in order to provide care to their patients.
Some of the social media commentary about Idaho has centered on chastising women in the state, saying they’re getting what they deserve for voting Republican. Those views are mean-spirited and they ignore the core of people who didn’t vote for these laws or these legislators but are now subject to their decisions. And, those who criticize are missing the point, because even people who live in blue states may find their rights under attack in short order.
That’s because we are still waiting on a decision in the Texas case where anti-abortion groups filed a lawsuit over medication abortion in the Northern District of Texas’s Amarillo Division, which put it in front of Judge Matthew J. Kacsmaryk. Judge Kacsmaryk, who hears 95% of the cases filed in the Amarillo Division, was deputy counsel for the First Liberty Institute, a deeply conservative religious liberty law firm in Plano, Texas, before he went on the bench. The Institute has a track record of litigating anti-abortion positions, as well as efforts to block the “contraception mandate” that required health insurers to pay for birth control.
The plaintiffs in the case have asked the judge to enter a nationwide ban on one of the two key drugs used for medicated abortion, mifepristone. In other words, the case is about red states’ efforts to control women’s bodies in blue states. That’s what a nationwide ban would do. It would apply to women who need the drug for medical care after a pregnancy loss and to women seeking an abortion if the plaintiffs get their way. And if Judge Kacsmaryk imposes a ban, it will be litigated in the ultra-conservative Fifth Circuit Court of Appeals, which, along with the Supreme Court, has permitted other restrictive provisions like Texas’s S.B. 8 vigilante justice law to remain in effect while they were being litigated. If the goal is a nationwide abortion ban, whether imposed by the courts now or by a Republican president in the next administration, we are getting perilously close. Dobbs was not the low-water mark in pregnant people’s ability to control what happens to their bodies. It was only the start.
More than half of the abortions in the U.S. are now medication abortions. The ruling in the Texas lawsuit could have a staggering nationwide impact. Part of the challenge to mifepristone centers on the process used by the FDA to allow its use. The lawsuit talks about safety concerns. But that approach is wholly hypocritical. The safety data for mifepristone is compelling. CNN put it in this interesting comparative form:
It’s hard to know what to focus on in today’s America. Our voting rights are at risk. Abortion rights have taken a step back 50 years. Trans people are under attack, and same-sex marriage isn’t far behind. Everywhere you look, it seems like rights we’ve assumed were secure aren’t. And of course, there’s the prospect of unprecedented, imminent prosecutions of the former president of the United States. Putting it all together, it’s an important reminder that while Trump’s conduct in office was uniquely horrible, he’s not the source of the attack on progress in our country. He’s the manifestation of people who would see advances taken away. Trump brought hate into the mainstream, permitting neo-Nazis, racists, misogynists, and others to move from the fringes into the mainstream.
While much of our focus at the moment is on the former president, we also have long-term battles to fight to protect our rights. Today, it’s women in Idaho. There will be more. We are going to be working to bring our country back to its senses for a long time, even when Trump is finally off the radar screen.
We’re in this together,