By Richard J. Blok, Idaho Criminal Defense Attorney, and Elisheva M. Patterson, Civil Litigation Attorney.
NOTE: This article was written on August 1, 2022, laws in this area are rapidly changing. Before you make any decisions, consult with your attorney.
On June 24, 2022, the United States Supreme Court announced its decision in Dobbs v. Jackson Women’s Health Organization overturning the constitutional right to abortion found in Roe v. Wade and over 50 years of constitutional precedent. Now that the final decision is published, Idaho’s criminal abortion statute will be triggered and abortion in Idaho will be outlawed on August 25, 2022.
What is Illegal
Idaho’s trigger law, I.C. § 18-622, is set to come into effect 30 days after the final judgment in Dobbs, and will criminalize all abortion. Abortion “means the use of any means to intentionally terminate the clinically diagnosable pregnancy…” I.C. § 18-604. The trigger law (I.C. § 18-622) makes it a felony, punishable by a minimum of two (2) years in prison, to perform an abortion. While there is at least one legal challenge to the trigger law, which could potentially stay the law from taking effect, there is good reason to expect it to go into full effect.
Idaho’s trigger law does not contain any exceptions. Rather, it provides for affirmative defenses. Idaho only allows abortion in cases where: (1) the abortion is necessary to prevent the death of the mother; or (2) where the mother has reported rape or incest to the police. It is important to remember that affirmative defenses are not exceptions. You can still be charged with a crime and arrested if you have an affirmative defense. You would then have to take the case to trial, and assert your defense. And then the trial Judge has discretion on whether to allow your defense to go to the jury. In other words—an affirmative defense is no sure thing. Do not count on it to make decisions in your life.
Idaho Code § 18-606 also makes it a crime to get an abortion or to assist someone in getting an “illegal” abortion. Both violations of law are felonies punishable by a minimum of one (1) year in prison. Idaho Code § 18-603 makes the advertisement of abortion services or contraception, except by medical professionals, a felony. Both § 18-606 and § 18-603 were enacted in the early 1970’s and are likely to change in a post-Roe Idaho. Exactly how any of these new or old laws would work in practice is unclear at this point, but there are current legal challenges to § 18-622, as well as prior challenges to § 18-606 under Roe and Casey. Although there will likely be future legal challenges to these laws, the best legal advice at this point is to act as if these laws are in full force.
What is Still Legal: Contraception
Contraception, including Plan B (the morning after pill) and intrauterine devices (IUD’s) are currently legal in Idaho. Idaho’s definition of abortion has a specific carve-out for common birth control. “…abortion shall not mean the use of an intrauterine device or birth control pill to inhibit or prevent ovulations, fertilization or the implantation of a fertilized ovum within the uterus.” I.C. § 18-604. Other forms of hormonal birth control, as well as condoms and other more traditional birth control are also legal in Idaho. Permanent sterilization including vasectomy and tubal ligation are also legal. The choice of birth control method is a medical and personal one, not a legal decision. Nothing here should be construed as medical advice, and you should make contraception decisions in consultation with your medical provider.
A number of states outside of Idaho protect a women’s right to an abortion and have widely available access to legal abortion services. It is unclear if Idaho would try and prosecute an Idaho resident for obtaining an abortion outside of Idaho. However, it seems unlikely. The State of Idaho would lack jurisdiction over the out of state abortion provider, and would have difficulty obtaining discovery. Further, Justice Kavanaugh has suggested that Idaho would lack the power to prosecute abortions outside the state. “For example, may a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.” Dobbs v. Jackson Women’s Health Org., No. 19-1392, 2022 WL 2276808, at 65 (U.S. June 24, 2022) (Kavanaugh, J., concurring). Nonetheless, a particularly aggressive prosecutor may try to test whether they can prosecute out-of-state abortions. At this point, it is unknown if such a prosecution would be successful.
The knowledgeable, experienced, and diligent attorneys at Racine Olson, PLLP are here to help you and your family when you need it the most. Whether a misdemeanor or felony, our Idaho criminal defense attorneys are prepared to guide you through the legal process and fight for you at every turn. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation with the Racine Olson, PLLP team of criminal defense attorneys. You can also email us directly at firstname.lastname@example.org and email@example.com. We stand ready to answer your questions and help solve your criminal defense needs.