Idaho Passes Strictest U.S. Abortion Bill

The Idaho Legislature on Thursday approved what would be the nation’s most restrictive abortion law--and more significantly, one that is aimed at forcing the U.S. Supreme Court to review its historic Roe vs. Wade decision giving women the right to an abortion.

If signed by Democratic Gov. Cecil D. Andrus, the measure would outlaw more than 90% of the 1,650 abortions currently performed each year in Idaho and impose stiff penalties on doctors who perform them.

However, both sides of the abortion debate agree that it appears certain to be blocked by lower courts because it squarely contradicts the 1973 Supreme Court decision legalizing abortion if it is done before a fetus is viable.

Although these court challenges could take years, abortion opponents hope the Idaho law eventually will reach the U.S. Supreme Court, giving its conservative majority no choice but to take a clear-cut stand on the 17-year-old Roe vs. Wade decision.

Specifically, the legislation is aimed at Justice Sandra Day O’Connor, who has upheld relatively modest abortion restrictions by states in the past, but who has declined to go so far as to support overturning Roe vs. Wade altogether.

With the other eight justices divided evenly on the issue, both sides consider her vote the one that could tip the court balance.

“We’ve targeted the bill to get a five-person majority of the Supreme Court,” said Idaho state Sen. Roger B. Madsen, the Boise Republican who wrote the legislation. He described O’Connor’s as “the swing vote.”

“This legislation could be the final blow to Roe vs. Wade,” said Kate Michelman, executive director of the National Abortion Rights Action League. “The vote in Idaho today could mean the beginning of the end of the right to choose for all American women.”

After several hours of debate, the measure passed the Senate on a 25-17 vote, a comfortable margin over the 22 votes needed. The House of Representatives approved it almost two weeks earlier on a 47-36 vote.

The bill will be sent to Andrus on Tuesday. He could not be reached for comment, but his chief of staff, Mike Mitchell, said that “when the governor announced last Monday that he is running for reelection, he said he was pro-life. He is opposed to abortion and has been for some time. But as far as this legislation goes, no comment.”

The bill allows abortion only in certain limited circumstances: rape, incest, serious fetal defect or where the pregnancy poses a threat to the physical health of the pregnant woman. Rape victims could claim the exclusion only if they reported the crime to police within seven days. Incest victims would have to be less than 18 years old and would be required to report it to police before seeking the abortion.

Doctors performing abortions deemed illegal would face civil fines up to $10,000. They also could be sued by anyone seen as having a legitimate interest in the pregnancy, including the father of the fetus or the parents of a minor child undergoing abortion.

A woman who had an abortion would not be punished unless she attempted to perform the procedure on herself, in which case she would also face a $10,000 fine.

State Sen. Karl Brooks said, “The bill that passed is very extreme and has no chance of being upheld by the U.S. Supreme Court. We have engaged in a useless legislative exercise that . . . makes Idaho look ridiculous to the rest of America.”

“I just finished a letter to Gov. Andrus telling him I am humiliated and ashamed to be an Idahoan,” said Sally Trott, a founder of Freedom Means Choice and a self-described conservative Republican. “If the bill is signed, we will explore trying to gather 37,000 signatures withing 60 days to get a referendum vote.”

Burke Balch, state legislative coordinator for the National Right to Life Committee, the nation’s largest anti-abortion group, described the Idaho measure as “a reasonable approach” and predicted that it “will inspire other states” to approve similar legislation.

Last July, the Supreme Court gave states more leeway to impose abortion restrictions when it upheld a strict Missouri abortion law in the case of Webster vs. Reproductive Health Services.

However, it did not use the relatively narrow case as an opportunity to overturn Roe vs. Wade. At that time, O’Connor urged restraint, writing that “when the constitutional invalidity of a state’s abortion statute actually turns on the constitutional validity of Roe vs. Wade, there will be time enough to re-examine Roe. And to do so carefully.”

Lynn Paltrow, an attorney with the American Civil Liberties Union, said that time may be coming, “and Idaho could be that case.”

Since last summer’s Supreme Court decision in the Missouri case, the battle over abortion has been fought on a state-by-state basis, with each side claiming victories, both in the passage of new laws and in the election of candidates sympathetic to its viewpoint.

The Idaho vote is “just the first lap in a marathon,” Brooks said. “There are a lot of chapters still to be written.”

Tumulty reported from New York and Sahagun from Boise.