Clarity needed: Idaho lawmakers must fix ambiguity in abortion law immediately | Opinion

Thursday’s U.S. Supreme Court ruling to allow emergency care for pregnant women facing health-related issues provides only narrow, temporary relief to physicians and their pregnant patients in Idaho.

The justices ultimately kicked the issue of whether Idaho’s abortion ban violates the federal Emergency Medical Treatment and Labor Act back to lower courts for further litigation, and it could be months or even years before we get a final resolution from the courts.

In the meantime, doctors and patients have to wait and see whether another court ruling will suddenly mean they’ll have to travel out of state for medical treatment, get airlifted to another state in an emergency or stay in Idaho with a nonviable pregnancy that threatens their health or ability to have children in the future.

“This decision to put the case back down to the lower courts does provide some welcome immediate relief for women and their doctors in Idaho,” Susie Keller, CEO of the Idaho Medical Association, said during a press conference Thursday after the ruling was released. “But given how much uncertainty there still is in Idaho law, there’s still much more work to do to provide that necessary clarity and certainty around protecting the health of pregnant women and to keep physicians practicing in Idaho.”

The real and lasting solution is legislative action. At a minimum, lawmakers in their next session should add a clear exception to protect a pregnant woman’s health, not just her life.

“We believe this is a significant step forward to ensuring that our hospitals and physicians can offer critical care without government interference, ultimately, improving health care outcomes for pregnant women in the state,” Greg Morrison, of the Idaho Hospital Association, said during a press conference Thursday. “However, Idaho’s abortion law still needs added clarity to protect the health and well-being of Idaho women, outside of an emergency room or emergency department.”

Since Idaho’s near-total abortion ban went into effect, hospitals and physicians have been fearful of criminal prosecution for providing necessary medical care.

According to the Idaho Medical Association, the state has lost about 22% of its practicing OB-GYNs since the law took effect. This exodus of specialists puts the health of Idaho women at risk, especially in rural areas already facing physician shortages. And the chilling effect of potential felony charges has made Idaho deeply unattractive for recruiting new OB-GYNs.

Unfortunately, Idaho’s Republican legislators and leaders haven’t been listening.

Keller said her organization has been trying to work with legislators the past two years to provide for an exception based on the health of the mother.

According to draft legislation shared with the Idaho Statesman, an abortion ban would not apply to “the treatment of a woman whose pregnancy or other health condition in the good faith clinical judgment of her physician so complicates her medical condition as to necessitate the abortion of her pregnancy to treat her and avoid serious risk of substantial impairment of a major bodily function or serious dysfunction of any bodily organ or part; provided however that no abortion shall be deemed necessary because the physician believes she may or will take action to harm herself.”

Concerns that such an exception would create a “loophole” for elective abortions are unfounded. Other states — including our conservative neighbor Utah — have successfully implemented health exceptions without compromising their draconian abortion restrictions.

Utah’s law allows for an abortion after 18 weeks of gestation to prevent “a serious physical risk of substantial impairment of a major bodily function of the woman on whom the abortion is performed.”

Idaho can do the same, while providing crucial protections for women facing high-risk pregnancies.

Idaho Attorney General Raul Labrador has downplayed concerns among the Idaho medical community and been cavalier about the state’s physician problem. He said doctors have been scared by “left-leaning, pro-abortion lawyers” who are confusing them, according to a Statesman article Thursday.

“If a doctor in good faith believes that the woman’s life is in jeopardy … they can terminate the pregnancy,” he said, even if the threat is not imminent.

But that is a terrible misunderstanding of the issue, which might explain why Labrador’s team failed to win over a stacked Supreme Court in a case that probably should have been a slam dunk.

The fact that the justices were confused about the application of Idaho’s abortion ban is clear evidence that that law, indeed, is poorly written and confusing.

And when a doctor has the threat of being arrested and thrown in jail, the chilling effect is obvious, something Labrador clearly doesn’t understand very well.

“I will just say that the AG’s comments, from what I saw and what I’ve read, focus on the life of the mother, and it is true, and the law is clear around preserving the life of the mother,” Keller said. “However, what this whole case is about, and what our physicians and our patients are very concerned about, are those situations in which a pregnant woman’s health is in jeopardy that she is on a track to lose her fertility or a major bodily function. And that is not clear in the law. So that’s really the clarity that we are seeking.”

During the primary election this year, several Republican legislators and candidates told the Idaho Statesman editorial board that they favored exceptions in Idaho’s abortion ban to allow for abortions when the health of the mother is at risk — not just the imminent death.

So make it clear, GOP legislators: Either you want exceptions when the health of the mother is at stake or you want to still ban abortions in the case of a nonemergency health threat or nonviable pregnancy.

Either way, write it into law and make it plain.

Then courts can make a clear ruling on whether Idaho’s law runs contrary to federal law.

Statesman editorials are the unsigned opinion of the Idaho Statesman’s editorial board. Board members are opinion editor Scott McIntosh, opinion writer Bryan Clark, editor Chadd Cripe, newsroom editors Dana Oland and Jim Keyser and community members Greg Lanting, Terri Schorzman and Garry Wenske.