Restrictions

On August 25, Idaho began enforcing its trigger ban, which prohibits abortion at all stages of pregnancy, with exceptions for the life of the pregnant person and for survivors of rape and incest who have reported the incident to law enforcement.^[1]Idaho Code § 18-622(1)(a) (stating that the ban will take effect thirty days after “the issuance of the judgment…of the United States supreme court” which took place on July 28, 2022). The … Continue reading following the U.S. Supreme Court’s decision to overturn Roe v. Wade in the case Dobbs v. Jackson Women’s Health Organization.^[2]Dobbs v. Jackson Women’s Health Org., 597 U.S (June 24, 2022), rev’d Dobbs v. Jackson Women’s Health Org., 945 F.3d 265, 274 (5th Cir. 2019).  In 2023, the state narrowed the exceptions to the trigger ban, limiting the rape and incest exceptions to the first trimester and attempting to redefine abortion for specific medical conditions.^[3]H.B. 374, 2023 Leg., Reg. Sess. (I.D. 2023), to be codified at Idaho Code §§ 18-604, 18-622. However, the state is prohibited from criminalizing medical providers who provide abortion care to pregnant people in emergency situations pending the outcome of the Department of Justice’s lawsuit against Idaho on the theory that the trigger ban violates the requirement of the federal Emergency Medical Treatment and Labor Act (EMTALA).^[4]U.S. v. Idaho, No. 1:22-cv-00329-BLW (D. Idaho Aug. 24, 2022) (granting preliminary injunction).  EMTALA requires hospitals that receive Medicare funds to provide stabilizing treatment to patients regardless of their ability to pay.^[5]42 U.S.C. § 1395dd(e)(1)(A)(i)-(iii). 

Idaho has not repealed other laws related to abortion. Idaho retains gestational bans at  6-weeks LMP,^[6]IDAHO CODE §§ 18-8804, 18-8807. a law modeled on Texas S.B. 8 and enforced through a private right of action. The state Supreme Court allowed this ban to take effect.^[7]Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky v. Idaho, No. 49615, 49817, 49899 (Idaho Sup. Ct. Aug. 12, 2022). Idaho also prohibits abortion after twenty weeks post-fertilization; however, this ban is enjoined.^[8]Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky v. Idaho, No. 49615-2022 (Idaho Apr. 8, 2022) (order staying S.B 1309); McCormack v. Hiedeman, 900 F. Supp. 2d 1128 (D. Idaho … Continue reading The state prohibits abortion after viability.^[9]Idaho Code § 18-608(3), aff’d McCormack v. Hiedeman, 900 F. Supp. 2d 1128 at 1145 (D. Idaho 2013 (enjoining the 22-week ban and affirming the constitutional right for a person to have an abortion … Continue reading Idaho prohibits D&X procedures.^[10]IDAHO CODE § 18-613. Idaho law continues to include requirements that pregnant people must undergo a mandatory twenty-four-hour waiting period, and biased counseling; ^[11]IDAHO CODE § 18-609 (2), (4)-(5). prohibitions on public funding, and private insurance coverage, ^[12]Id. § 56-209c; IDAHO ADMIN CODE r. 16.03.09.511; IDAHO CODE §§ 18-8701 et. seq.; 41-3439, 41-3924, 41-1848. and criminal penalties for people who self-manage their abortions, but this last provision is permanently enjoined.^[13]IDAHO CODE § 18-606 (2), invalidated by McCormack, 900 F. Supp. 2d at 1144. Idaho continues to require that a parent or legal guardian,^[14]IDAHO CODE § 18-609A (1). consent to a minor’s abortion; alternatively, a judge^[15]Id. § 18-609A (2). can approve a minor’s abortion without parental consent. However, in 2023, Idaho enacted a law that criminalizes assistance to a minor who leaves the state to access abortion care.^[16]H.B. 242, 2023 Leg., Reg. Sess. (I.D. 2023), to be codified at Idaho Code §§ 18-623, 18-8807.

Idaho retains targeted regulation of abortion providers (TRAP) laws  related to facilities, which was held to be unconstitutional,^[17]IDAHO CODE § 18-608(1), invalidated by McCormack v. Hiedeman, 900 F. Supp. 2d 1128 (D. Idaho 2013), aff’d sub nom. McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015). and reporting.^[18]IDAHO CODE § 18-506. Idaho law continues to restrict the provision of abortion care to licensed physicians^[19]Id. § 18-608A and still restricts the use of telemedicine for medication abortion.^[20]Id. § 18-617(2) Providers who violate Idaho’s abortion restrictions may face civil and criminal penalties.^[21]See, e.g., IDAHO CODE § 18-609G(2); id.§ 18-613; id.§ 18-622.

State Protections

Idaho law does not include express constitutional or statutory protections for abortion.^[22]Id. § 18-601.

Post-Roe Prohibitions

In 2020, Idaho enacted a trigger ban. ^[23]IDAHO CODE § 18-622. Idaho repealed its pre-Roe ban in 1973.^[24]See 1973 Idaho Sess. Laws 442, ch. 197, § 2.

Conclusion

Now that the Supreme Court has overturned Roe, Idaho has begun to enforce its trigger ban, which criminalizes abortion.