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) (2022) (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, … 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 215 (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]Idaho Code §§ 18-604, 18-622.

In January 2024, the Supreme Court agreed to hear a case brought by the state of Idaho, challenging the federal government’s determination that the federal Emergency Medical Treatment and Labor Act (EMTALA)^[4]42 U.S.C. § 1395dd(e)(1)(A)(i)-(iii) (EMTALA requires hospitals that receive Medicare funds to provide stabilizing treatment to patients regardless of their ability to pay). requires Idaho hospitals to provide abortion care to pregnant people in emergency situations,^[5]Moyle v. U.S., Case No. 23-726, 601 U.S. __ (Jan. 5, 2024) (order granting certiorari and staying preliminary injunction); Idaho v. U.S., Case No. 23-727, 601 U.S. __ (Jan. 5, 2024) (order granting … Continue reading and stayed the injunction previously affirmed by the Ninth Circuit.^[6]U.S. v. Idaho, Case No. 23-35440 (9th Cir. Nov. 13, 2023) (denying stay of injunction pending appeal); U.S. v. Idaho, Case No. 1:22-cv-00329 (D. Idaho Aug. 24, 2022) (order granting preliminary … Continue reading On June 27, 2024, the Supreme Court vacated the stay on the injunction and sent the case back to the lower courts for further action. ^[7]Moyle v. United States, Case Nos. 23-726, 23-727, 603 U.S. (June 27, 2024).

Idaho has not repealed other laws related to abortion. Idaho retains gestational bans at  6-weeks LMP,^[8]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.^[9]Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky v. Idaho, 172 Idaho 321 (Idaho Aug. 12, 2022). The ban is currently being challenged in state court. ^[10] Adkins et al. v. State, Case No. CV01-23-14744 (Idaho Dist. Ct. Dec. 29, 2023). Idaho also prohibits abortion after twenty weeks post-fertilization; however, this ban is enjoined.^[11]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.^[12]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.^[13]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; ^[14]IDAHO CODE §§ 18-609 (2), (4)-(5). prohibitions on public funding, and private insurance coverage, ^[15]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.^[16]IDAHO CODE § 18-606 (2), invalidated by McCormack, 900 F. Supp. 2d at 1144. Idaho continues to require that a parent or legal guardian,^[17]Id. § 18-609A(1). consent to a minor’s abortion; alternatively, a judge^[18]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.^[19]Id. §§ 18-623, 18-8807. Portions of the law that prohibit providing information to minors are temporarily blocked, but the portions of the law that prohibit transporting or sheltering minors are in effect.^[20]Matsumoto v. Labrador, No. 23-3787 (9th Cir., Dec. 2, 2024), affirming in part and reversing in part Matusmoto v. Labrador, Case No. 1:23-cv-00323-DKG, 2023 WL 7388852 (D. Idaho, Nov. 8, 2023).

Idaho retains targeted regulation of abortion providers (TRAP) laws  related to facilities, which was held to be unconstitutional,^[21]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.^[22]IDAHO CODE § 18-506. Idaho law continues to restrict the provision of abortion care to licensed physicians^[23]Id. § 18-608A and still restricts the use of telemedicine for medication abortion.^[24]Id. § 18-617(2) The current Attorney General of Idaho interpreted state law as prohibiting providers from providing referrals and information about abortion care in other states.^[25]Id.§ 18-622(1). Planned Parenthood v. Labrador, No. 23-35518, *7 (9th Cir., Dec. 4, 2024). This interpretation is subject to a preliminary injunction.^[26]Planned Parenthood v. Labrador, No. 23-35518, *8 (9th Cir., Dec. 4, 2024). Providers who violate Idaho’s abortion restrictions may face civil and criminal penalties.^[27]See, e.g., Idaho Code §§ 18-609G(2), 18-613, 18-622.

State Protections

Idaho law does not include express constitutional or statutory protections for abortion.^[28]Id. § 18-601. To the contrary, the Idaho Supreme Court found that the state constitution does not protect abortion and various abortion bans are rationally related to legitimate government interests.^[29] Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky, 522 P.3d 1132, 1195.

Post-Roe Prohibitions

In 2020, Idaho enacted a trigger ban. ^[30]IDAHO CODE § 18-622. Idaho repealed its pre-Roe ban in 1973.^[31]See 1973 Idaho Sess. Laws 442, ch. 197, § 2.

Conclusion

Now that the Supreme Court has overturned Roe, Idaho is enforcing its trigger ban, which criminalizes abortion.