Legal battles over abortion continue, even in deep red states

Indian abortion (AP)

It is likely that virtually all abortions will eventually be banned in deeply conservative Idaho, along with most other Republican-dominated states, but there are still battles to be fought in the courtroom and perhaps the legislature before that happens.

On Wednesday, lawyers representing a doctor and Planned Parenthood’s regional affiliate will stand before the Idaho Supreme Court asking judges to block enforcement of three laws designed to restrict abortion.

Since the June 24 federal court ruling overturning Roe v. Wade of 1973, the fight for abortion continued to play out in the courts, with judges deciding whether bans or other deep restrictions might apply.

The landscape has changed almost daily. A ban on abortion at any time of pregnancy is being enforced in eight states and as soon as fetal heart activity can be detected – usually around six weeks’ gestation – in another five. And most or all clinics have stopped offering abortion services in some additional states due to legal uncertainty.

Abortion advocacy groups, who have spent decades in court trying to preserve access, continue to struggle even in places like Idaho, where they are unlikely to prevail in the long term.

In several cases, judges stopped enforcement of the bans, allowing at least some abortions to continue, at least for a while.

In Kentucky, where enforcement of a ban has stopped and started several times since June, enforcement was allowed to resume with a ruling on Monday.

And in Louisiana, there were about 610 miscarriages a month in 2021. With the status change, 249 were reported from June 24 to July 29. Although this is much less than usual in this period, the legal struggle has allowed access for some patients.

In the Idaho cases, Dr. Caitlin Gustafson and Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky are suing the state over three laws. One scheduled to take effect on August 19 would ban abortions for pregnancies beyond six weeks’ gestation, and one that would take effect on August 25 would effectively ban all abortions. A third law allows potential relatives of a fetus or embryo to sue doctors who perform an abortion.

While the six-week ban on abortion contains exceptions for procedures done to save a pregnant person’s life or in cases of rape or incest, the exceptions set a very high standard that experts say will be difficult to meet. For example, people using the rape or incest exception will have to report the crime to law enforcement and then show that report to the abortion provider – but it usually takes weeks or months to get a copy of a newly filed police report under the public record of Idaho laws.

A total ban on abortion would allow healthcare professionals to be charged with a crime even if abortion was the only way to save their patients’ lives – but healthcare professionals could try to defend themselves in court with evidence that the procedure was necessary because of an immediate medical emergency.

Gustafson and Planned Parenthood argued in court documents that emergency medical exemptions are vague and would be difficult or impossible to implement to provide care to a pregnant person whose life could be at risk. They say that in some situations — such as when the placenta begins to pull away from the uterine wall, causing risky bleeding, or when a pregnant person’s blood pressure starts to skyrocket — patients sometimes die or suffer long-term damage, but these results aren’t always right.

The doctor and abortion rights group argue that the law that allows potential relatives of an embryo or fetus to sue abortion providers wrongfully enforces a state law and puts it in the hands of individuals rather than state entities, a violation of government separation of powers. The law allows the father, grandparents, brothers, aunts and uncles of a “pre-born child” to sue an abortion provider for a minimum of $20,000 in damages within four years of the abortion. Rapists cannot sue under the law, but a rapist’s relatives can.

The Idaho Legislature and the Idaho Attorney General’s Office responded that it is in the state’s interest to ban abortion and that the Legislature has the right to enact anti-abortion legislation. The Idaho Attorney General’s office, Lawrence Wasden, also argued that abortion rights advocates should take their fight to the polls, not the courts.

And the Idaho GOP during its annual convention last month passed a resolution against abortion in all instances — even if it is done to save the mother’s life.

Still, abortion rights advocates became galvanized after the US Supreme Court ruling. Protests for abortion rights drew large crowds in Boise, with anti-abortion rallies often held nearby. An abortion rights protest was scheduled to be held at the Statehouse on Wednesday night, starting several hours after the state’s highest court finished hearing arguments in the Planned Parenthood cases.

The Boise City Council last month passed a resolution limiting funding to investigate abortions and declaring that investigations for the purpose of prosecuting abortion providers will not be prioritized.

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AP writers Sara Cline in Baton Rouge, Louisiana and Geoff Mulvihill in Cherry Hill, New Jersey contributed to this article.

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