On September 11, 2023, the Center for Reproductive Rights filed a lawsuit challenging the limited scope of the medical exceptions to both of Idaho’s abortion bans: a total trigger ban and a six-week ban that has “vigilante”-style civil liability provisions.
The medical exception to Idaho’s near-total ban permits abortion only to prevent death, and its six-week ban similarly has a narrow medical exception. Clarifying the laws’ medical exceptions would allow physicians to provide life-saving care without waiting for patients to be near death. The lawsuit also seeks to clarify and expand the exceptions under the two bans to ensure physicians can provide abortion care to preserve a pregnant person’s health, including when the pregnant person has received a fatal fetal diagnosis.
The Center filed this case on behalf of seven plaintiffs: four women who were denied medically necessary abortion care in their home state; two Idaho physicians who provide obstetrical care; and a professional membership organization consisting of Idaho physicians, medical residents and medical students.
The lawsuit was filed simultaneously with challenges to similar laws banning abortion in Oklahoma and Tennessee.
In 2020, Idaho enacted a trigger ban that would ban abortion entirely in the state if the U.S. Supreme Court overturned Roe v. Wade. This total abortion ban made it a felony for any person to provide an abortion, without exceptions. Instead, the law noted only that a physician, when prosecuted, could rely on an affirmative defense, having “determined, in his good faith medical judgment . . . that the abortion was necessary to prevent the death of the pregnant woman”—and to bear the burden of proof.
In 2021, Idaho enacted a second abortion ban—a criminal six-week abortion ban, with the effective date delayed until a federal appeals court upheld a similar ban. A narrow exception is also included for a “medical emergency,” allowing an abortion to avert the pregnant person’s “death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.” The ban made no exceptions to preserve the health of the pregnant person, including when they have a lethal fetal condition. In 2022, the six-week abortion ban was amended to include a civil provision (similar to Texas’s S.B. 8) allowing family members of patients to sue the abortion provider for at least $20,000.
Shortly after the Supreme Court eliminated the federal constitutional right to abortion in June 2022, both the total abortion ban and the six-week ban were scheduled to go into effect in Idaho. Before the total abortion ban could take effect, the U.S. Department of Justice sued Idaho in federal court, arguing that because the total ban included only an affirmative defense to prevent a patient’s death, and not a true exception, it violated the federal Emergency Medical Treatment and Labor Act (EMTALA). In August 2022, the federal court issued a preliminary injunction blocking enforcement of the trigger ban to the extent it conflicted with EMTALA’s mandates.
In July 2023, the Idaho legislature replaced the trigger ban’s existing affirmative defense provisions with exceptions and amended the definition of abortion to include “[t]he removal of a dead unborn child,” “[t]he removal of an ectopic or molar pregnancy,” and “[t]he treatment of a woman who is no longer pregnant.”
The Center’s lawsuit asks the court to clarify the medical exceptions to Idaho’s abortion bans to ensure that physicians can legally perform lifesaving and health-preserving care without waiting for the patient to be near death, including when the fetus has been diagnosed with a fatal fetal condition.
The Center’s request to clarify the medical exceptions to Idaho’s abortion bans would assure physicians that they can legally provide lifesaving and health-preserving care without fear of criminal prosecution, civil liability or licensing penalties. Specifically, the Center’s lawsuit asks the court to issue a declaration that, at a minimum, Idaho’s abortion bans do not preclude a physician from providing abortion care when, in the physician’s good faith judgment and in consultation with the pregnant person, a pregnant person has: (i) a physical medical condition or complication of pregnancy that poses a risk of infection, bleeding or otherwise makes continuing a pregnancy unsafe for the pregnant person; (ii) a physical medical condition that is exacerbated by pregnancy, cannot be effectively treated during pregnancy or requires recurrent invasive intervention; and/or (iii) a fetal condition where the fetus is unlikely to survive the pregnancy and sustain life after birth.
The Center’s lawsuit argues that the current limited scope of Idaho’s medical exceptions violates the Idaho’s Declaratory Judgment Act as well as Article I, Sections 1 and 13 of the Idaho Constitution, which guarantee as “inalienable” the rights to defend and enjoy life, as well as the rights to pursue happiness and secure safety. Specifically, the lawsuit argues that:
- The medical exceptions unconstitutionally deprive pregnant people’s rights to life, happiness and safety. It also argues that the bans violate the right to equal protection under Article I, §§ 1 and 2 of the Idaho Constitution because the bans deprive pregnant Idahoans (and only pregnant Idahoans) of access to life-saving and health-preserving healthcare.
- The limited scope of the medical exceptions unconstitutionally violates physicians’ inalienable rights of “acquiring, possessing and protecting property,” under Article I, § 1 of the Idaho Constitution, by depriving them of their medical licenses and ability to practice their professions without due process of law.
About the Plaintiffs
Patient Plaintiffs: Idaho Women Denied Care After Experiencing Severe Pregnancy Complications
- Jennifer Adkins, of Caldwell, lead plaintiff in the case, was pregnant with her second child when she learned at 12 weeks of pregnancy that her baby was unlikely to survive because of multiple conditions, including the likelihood of Turner syndrome, which usually results in miscarriage. Even if she didn’t miscarry, Jennifer was likely to develop mirror syndrome, which could lead to edema and preeclampsia—both life-threatening conditions—if left untreated. She was able to obtain abortion care by traveling with her husband to Oregon—but only after receiving financial assistance from two abortion funds.
- Jillaine St.Michel, of Meridian, was pregnant with her second child when her 20-week ultrasound revealed that her baby had several severe developmental and chromosomal conditions affecting multiple organ systems and was unlikely to survive. After Jillaine and her husband had reached out to several out-of-state abortion clinics, she was able to obtain abortion care at a clinic in Seattle, Washington due to a cancellation.
- Kayla Smith, of Nampa, pregnant with her second child, learned at her 19-week ultrasound scan that her baby had a likely fatal and inoperable heart condition. Since Kayla had previously developed preeclampsia during her first pregnancy, she had a heightened risk of developing preeclampsia again if she carried the pregnancy to term. Kayla and her husband traveled to Seattle, Washington to obtain abortion care—a trip costing thousands of dollars that required them to take out a personal loan and obtain financial assistance from friends and family.
- Rebecca Vincen-Brown, of Ada County, pregnant with her second child, discovered at a 16-week anatomy scan that her baby had several fatal fetal conditions—including a chromosomal condition and significant cardiac conditions—and was unlikely to survive. Rebecca risked developing preeclampsia or severe hemorrhaging if she continued the pregnancy. Rebecca, her husband and their daughter drove seven hours to Portland, Oregon to obtain abortion care. After the first day of her abortion procedure, she passed her pregnancy in the hotel bathroom the next morning.
Physician Plaintiffs: Providers Unable to Provide Medically Necessary Patient Care
- Dr. Emily Corrigan is a board-certified, hospital-based obstetrician-gynecologist (OB-GYN) in Boise, Idaho, who works on a team that cares for patients with pregnancy complications. Dr. Corrigan has been a practicing OB-GYN for over 16 years. Under Idaho’s abortion bans, she and her team have experienced challenges in filling shifts and providing timely and appropriate abortion care needed by their patients experiencing pregnancy complications.
- Dr. Julie Lyons is a board-certified full-spectrum family physician in Hailey, Idaho, and has been a practicing physician for over 17 years. She is a member of the Idaho Academy of Family Physicians and a preceptor for medical students to receive hands-on clinical training. Dr. Lyons provides prenatal and obstetrical care to a heavily rural community that includes a large immigrant, refugee and Indigenous population, which tends to have higher rates of prenatal complications and high-risk pregnancies due to systemic barriers to accessing health care services. Because of Idaho’s abortion bans, Dr. Lyons’ practice has had significant problems navigating and ensuring compliance with the laws and, as a result, her patients have been denied or delayed in accessing abortion care for emergent medical conditions.
- The Idaho Academy of Family Physicians (IAFP) is a professional membership organization consisting of physicians, residents and medical students who practice medicine throughout the state of Idaho. About 28 percent of its 656 members practice medicine in rural areas, and about 30 percent provide obstetric care as part of their family medicine physician services. IAFP members have been harmed by Idaho’s abortion bans since they have been unable to care for their patients according to their medical training, education and expertise and are confused about what medical care they are allowed to provide to their patients under the bans’ vague medical exceptions.
“In their ruthless quest to ban abortion, Idaho politicians are endangering pregnant people and driving so many physicians out of state that Idaho’s entire medical system is on the brink of collapse,” said Gail Deady, Senior Staff Attorney at the Center. “While politicians are doing everything they can to hide the harms caused by Idaho’s extreme abortion bans, the plaintiffs today are standing up to speak the truth about how these laws are putting the health and safety of all Idahoans at risk.”
Plaintiffs: Jennifer Adkins; Jillaine St. Michel; Kayla Smith; Rebecca Vincen-Brown; Emily Corrigan, M.D.; Julie Lyons, M.D.; and Idaho Academy of Family Physicians
Center Attorneys: Gail Deady, Marc Hearron, Jen Rasay, Kulsoom Ijaz
Co-Counsel/Cooperating Attorneys: O’Melveny & Myers LLP, and Nevin, Benjamin & McKay LLP
- Complaint, 09.11.23
News on the Case:
- Center Expands Work on Behalf of Patients Denied Abortion Care Despite Grave Pregnancy Complications, 09.12.23
|March 24, 2020||Idaho Governor Brad Little signs into law a “trigger” abortion ban stating that if the Supreme Court overturns Roe v. Wade, all abortions will be illegal in Idaho with no exceptions. The law only contains affirmative defenses in cases of rape or incest or, based on the physician’s “good faith medical judgment,” to save the life of the pregnant person.|
|April 27, 2021||Governor Little signs a law criminalizing abortion after six weeks of pregnancy, with exceptions for rape, incest and, based on the physician’s “good faith medical judgment,” to save the life of the pregnant person. The law is set to go into effect after a federal appeals court upholds a similar ban.|
|March 23, 2022||Governor Little signs a law to add “vigilante”-style civil liability provisions to Idaho’s six-week abortion ban. The law also replaces the “good faith medical judgment” standard for determining a “medical emergency” with a “reasonable medical judgment” standard.|
|August 19, 2022||The criminal penalty provisions in Idaho’s six-week abortion ban take effect following a ruling from the U.S. Circuit Court for the Eleventh Circuit upholding Georgia’s six-week ban.|
|August 25, 2022||Idaho’s total abortion ban takes effect, two months after the U.S. Supreme Court overturns Roe v. Wade and eliminates the federal constitutional right to abortion. The Idaho total abortion ban supersedes the criminal penalty provisions in Idaho’s six-week abortion ban. At this point, the total abortion ban and the “vigilante-style” civil liability provisions of the six-week abortion ban can be enforced simultaneously.|
|July 01, 2023||Idaho’s total abortion ban is amended to convert the existing affirmative defenses into exceptions and to change the definition of abortion.|
|September 11, 2023||The Center files Adkins v. State of Idaho challenging the limited scope of the medical exceptions to Idaho’s abortion bans. The Center also simultaneously files complaints in Oklahoma and Tennessee.|