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The future of Idaho abortion laws examined

Idaho helped lead the charge on outlawing abortions within its borders after the Supreme Court made it possible. But upsetting decades of established law has left Idahoans and the country at large to fear for an uncertain future – and to fret for a conquest the state may not be ready to abandon.

(CN) — Trek down one of Idaho’s longest roads and it won’t take long to see a billboard towering above promoting an anti-abortion mission statement bought and paid for by one of the state’s anti-abortion groups. Take that road down a little further and you’re in the heart of downtown Boise, where on weekends it's common to see groups of demonstrators gathered around public parks toting pro-abortion slogans. Turn off that street a bit and you’ll find a Planned Parenthood office, where demonstrators of both camps can be found and their signage is used to tell them apart.

These have become common sights across most of America, but in Idaho, they are far from new. For decades, the state has been caught in a conflict between a GOP ready for its opportunity to show their disdain for abortion, and a far more progressive capital city populace that — while still politically outnumbered in the red state — has stood ready to defend abortion rights that were so long afforded to them.

Then, the United States Supreme Court opened the floodgates for states to do with abortion laws as they wished, and it seemed Idaho saw a winner in its conflict crowned. But that reality may not be so simple — and that battle may be far from decided.

One of the first questions that emerged for Idahoans following the state’s push against abortion rights was just how far the state was willing to go with them. Lawmakers have passed at least three separate bans that, taken together, outlaw virtually all abortions in the Gem State.  

Melissa Wintrow, Democratic Senator from Idaho’s 19th District, says one of those bills passed by her fellow lawmakers suggests an exception in the event of rape or incest, an exception that has found its way in other bans across the country — but the senator says Idaho’s is all but nonexistent.  

“With the bill that they put through, they indicate that there is a narrow exception for rape or incest,” Wintrow said. “Well it’s not really an exception at all. They require a police report, and as I told them on the Senate floor two years in a row . . . that we have a law that exempts police reports from public records. I just heard from someone two days ago who has been trying to get a police report for four months. So, as I told my colleagues, this exception is really no exception.”

This contradiction between what one Idaho law says you must do to qualify for an abortion exception and another law that seems to make that goal impossible is not a new discovery and was the subject of debate for the Idaho Legislature. So how then did GOP lawmakers resolve the paradox when it was raised to them? According to Wintrow, they didn’t.

“On the Senate floor, they just dismissed it. ‘No, you can get it.’ And they know they can’t. One of the senators is a former prosecutor, and they know they can’t. It’s just defeating and it’s disingenuous. They are basically tricking people into thinking they are being compassionate when they are not.”

But contradictory or not, the state’s abortion bans may be on a collision course with another problem: how they will hold up if their biggest city has no interest in them.

Not long after one of the bans became reality, Boise’s City Council passed a resolution that not only affirmed their commitment to the protection of reproductive rights, but announced they would not be prioritizing any of their time and resources on investigating abortions or enforcing the bans. Boise Mayor Lauren McLean said that following the bans there was an expectation that the city would divert its resources towards investigating claims and doctors, but the city had more important things on its plate.

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Idaho GOP officials pushed back on the move, calling it a “flagrant violation of the rule of law” and one that sets a “dangerous precedent” if acted upon.

When asked to clarify what the city’s plans were for managing their abortion enforcement, a Boise Police Department spokesperson responded that they would “investigate criminal allegations as we are obligated to under the law.”

Around two dozen local Republican lawmakers were reached out to for comment on how they viewed Boise’s move and if there were plans to rebuke it. None responded by the time of publication.

While it’s unclear if the stage is set for a policy struggle between the city of Boise and the state, it raises an important question Idahoans and many others continue to ask: When will Idaho Republicans feel like they’ve won their fight against abortion and be content to let sleeping dogs lie? Or will they continue to hammer through further restrictions and take their dissenters to task?

Ross Burkhart, professor of political science at Boise State University, says that from a perspective of political gamesmanship, the state may have little to gain by continuing their crusade.

“While hardliners in Idaho will try to eliminate all exceptions to the abortion law, there is no general election advantage to doing so for the Republicans in the supermajority,” Burkhart said. “Preserving abortion rights is clearly a voting motivator for Democrats, so nationally speaking, Republicans are a bit on the defensive. Motivation to vote could matter in the few marginal seats that exist in Idaho, such as the 15th legislative district in West Boise.”

If Republicans decide to keep the pressure on abortion restrictions, one arena that could take place in is on the issue of out-of-state abortion providers appealing to those in states where abortion is banned.

And Idaho’s Northwest neighbors have done just that. Both Oregon and Washington have put together multi-million dollar funds to help cover the medical and travel costs for Idahoans and other red-state refugees who’ve made the pilgrimage to states that remain abortion friendly. Oregon’s Governor Kate Brown said her state was the first to set aside that kind of money and that the state’s $15 million fund would also help manage their massive influx in out-of-state patients.

Could Republicans in Idaho see this as a potential leak in their bans and look to shore them up? Skye Perryman, CEO and President of Democracy Forward that filed an amicus brief in support of the Biden administration’s challenge to one of the bans, says we should remember that the freedom to travel across the United States has long been at the heart of our country.  

“People have a right to travel,” Perryman said. “People have a right to move about the country. That is a fundamental principle of our democracy, a fundamental principle of our laws. And there are a number of states that are taking increasingly extreme positions that are seeking to undermine even that ability of people to move about freely, which should concern everyone not only from a women’s health perspective but also from a democracy perspective.”

Congress tried to get ahead of this problem and pass a bill that would safeguard an individual's ability to travel across state lines for abortion services. It was blocked by Republicans in the Senate before it could see the light of day.

Idaho Republicans have yet to make a play here and legal experts seem agreed that this kind of travel is protected by the Fourteen Amendment — but not so many months ago that same amendment was used to protect the right to an abortion. If the overturn of Roe v. Wade taught the nation anything, it’s that these precedents can feel secure right up to the moment that they don’t.

And Perryman says we need to remember that when lawmakers show us their intentions on issues like this, it is time we start taking their word for it.

“The worry is not misplaced. And it’s one lesson out of all this, is that when these state lawmakers show you who they are people need to start believing them, taking them seriously and doing their part to push back on this extremism.”

A similar battle could also be brewing in the world of insurance, where many employers and corporations have begun distancing themselves from the anti-abortion policies of their states.

The Yogurt giant Chobani, that operates a one-million-square-foot plant in Twin Falls, Idaho, announced over the summer they would now be covering costs, including gas and lodging, for their employees who need to travel out of state for an abortion.

While Senator Wintrow and others in the state suspect Idaho’s GOP leaders will be opponents to these policies, Burkhart notes that the influence abortion bans will have on businesses is still new and undiscovered. It’s unclear if the abortion bans and the abortion care services more employers have begun offering could change workforce prospects in the state. Lawmakers, then, could be advised to proceed through that jungle with caution.

“To the extent that the abortion ban runs into conflicts with the business community in Idaho, this could cause a problem for workforce recruitment in the state, and by extension the economy of the state, if potential workers consider a full suite of health care services being available to them before accepting offers of employment. We do not have survey evidence of the degree of importance reproductive health care services are to potential employees, since the Roe reversal is so recent, but it definitely could be a factor in a competitive job market.”

While these uncertainties and countless others continue to gnaw at a populace that remains starved for answers and yearning for some stability, it’s important to remember that these things – like so many in American life – have a habit of changing on a dime. Landmark decisions from the highest courts we have establish protections one day, and rulings that erase them come down the next. State Supreme Courts, like Idaho’s, allow abortion bans to take effect while legal challenges play out, while others have elected to block them.

If Idaho’s history is any indicator, it is a back-and-forth that will likely play out for years to come. It’s a struggle that is longer than any legislative session, any term in office, perhaps even longer than any one lifetime. And if there is any certainty to be found, it is that billboards alongside busy streets will continue to find business, parks will always find visitors in demonstrators, and if you ever need a reminder on the state of abortion rights in your area, all you need is to pay attention to the chants on their lips and the signs they hold above their heads.  

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