(CN) – A federal judge in Idaho refused to block a state law requiring abortion providers to report on “complications” from abortions, including breast cancer and depression, for the sake of medical research – a law Planned Parenthood has called unconstitutionally vague.
U.S. District Judge Dan Nye sided with the health care provider at least in part on vagueness, but said it had not shown the law will cause irreparable harm.
“Here, while it does appear there are questions going to the merits of the claims – namely Planned Parenthood’s constitutional vagueness challenge – it has not met its burden in demonstrating that irreparable harm will result if the court does not issue an injunction at this time,” Nye wrote Tuesday.
Planned Parenthood did not respond to an email seeking comment on Nye’s decision.
House Bill 638, or Abortion Complications Reporting Act, was signed into law by Idaho Gov. C.L. “Butch” Otter in March 2017. It created a list of at least 37 complications that can injure women undergoing abortions and requires abortion providers to file a written report with the Idaho Department of Health each time a woman “reports any complication, requires medical treatment or suffers death that the attending medical practitioner has reason to believe, in the practitioner’s reasonable medical judgment, is a direct or indirect result of an abortion.”
The measure, sponsored by Republican state Rep. Greg Chaney, defines surgical abortion as “an invasive procedure that can cause severe physical and psychological complications for women,” before launching into the exhaustive list which includes anything from cardiac arrest and coma to sleep disorders. It even lists abortion failure or “retained tissue” and the need for follow-up care.
It also requires hospitals and licensed abortion facilities to submit reports on the age and race of women seeking abortions along with details of her previous pregnancies, though the law contains promises to keep such reports confidential.
“To facilitate reliable scientific studies and research on the safety and efficacy of abortion, it is essential that the medical and public health communities have access to accurate information both on the abortion procedure and on complications resulting from abortion,” the law says.
But groups like Planned Parenthood aren’t buying it. In July 2018, Planned Parenthood of the Great Northwest and the Hawaiian Islands joined the American Civil Liberties Union of Idaho in challenging the law in a federal lawsuit, saying it has no scientific basis.
While the state of Idaho exempts simple bleeding or a light fever, it does require a provider to report heavy bleeding and a high fever that last for more than 24 hours.
Planned Parenthood says this is the kind of undefined discretion that makes the law so vague that it would be difficult for abortion providers to comply. Not everyone will agree on what counts as “heavy bleeding,” for example.
Nye said Planned Parenthood was being “myopic” on vagueness.
“While a lay person may not understand exactly how much bleeding (for example) is considered ‘heavy,’ such a determination is not as difficult for a medical professional – particularly someone who performs abortions – to understand. Thus, the requirements are not so much vague, as they are technical,” he wrote.
Still, Nye said the issue of discretion is a polarizing one, given that some of the listed complications may not even be caused by the abortion procedure.
“Some of the complications appear to be only tangentially related to abortion procedures, and more refined language may have better informed practitioners of what exactly they must report,” he wrote. “Disagreement between the parties alone does not rise to the level of vagueness, however there does appear to be a chance of success on the merits of Planned Parenthood’s vagueness challenge.”
Nye said he found no evidence that the state of Idaho acted out of animus against abortion providers by passing HB 638 and that the state has a legitimate interest in ensuring safe abortions. He also noted abortion providers have 90 days to report complications, should they arise, before they would face fines or sanctions.
But abortions are a constitutionally protected right, and the law comes at a time when groups like Planned Parenthood fear it may not always be – especially in conservative states emboldened by the election of President Donald Trump.
In February 2018, Idaho state Sen. Dan Foreman, a Republican, yelled “abortion is murder” at a group of university students lobbying for legislation to give women access to birth control. And in 2017, the local Boise Weekly reported Foreman said he would sponsor legislation to classify abortion as first-degree murder making both the woman and the doctor culpable. It never got a hearing.
Jeremy Woodson, community engagement manger with the ACLU of Idaho, said in a phone interview that states will often chip away at abortion rights through legislation rather than making it illegal outright.
“It’s true that we’re seeing efforts to basically erode the ability to get an abortion from both the national and state levels,” Woodson said. “This is something that is happening around the country with states trying to chip away at access to abortion.”
Woodson said Nye’s ruling was disappointing, but it isn’t a total loss.
“The court just felt there wasn’t any immediate harm if the law remained in place. Even with the decision the court still concluded that the law may be unconstitutional,” he said, adding: “We very much disagree with this decision. As advocates in this area, while we’re still reviewing certain parts of the decision, we will continue to challenge this law.”
Idaho attorney general spokesman Scott Graf declined to comment on the ongoing litigation.