Idaho Abortion Laws: Updated FAQs

On January 5, 2023, the Idaho Supreme Court upheld Idaho's near-total abortion ban (I.C. § 18-622), Idaho's fetal heartbeat (“6-week”) abortion ban to the extent it is not superseded by the near-total abortion ban (I.C. § 18-8804), and Idaho's Texas-style civil liability statute (I.C. § 18-8807).¹ Anyone who performs an abortion of a clinically diagnosable pregnancy is guilty of a felony unless the abortion is necessary to save the life of the pregnant woman or in the case of rape or incest.² The total abortion ban is currently subject to an important exception: on August 24, 2022, the United States District Court of Idaho entered a preliminary injunction blocking enforcement of the total abortion ban in cases in which the Emergency Medical Transport and Active Labor Act (EMTALA) would require hospital-affiliated providers to perform an abortion to protect the health of the mother.³ Given these developments, we have updated our answers to common questions concerning Idaho's abortion laws.

1. What is an “abortion” in Idaho?

Idaho generally defines “abortion” as:

the use of any means to intentionally terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child…⁴

“Unborn child” means “an individual organism of the species Homo sapiens from fertilization until live birth.”⁵ “Clinically diagnosable pregnancy” is not defined.

2. Does termination of an ectopic or non-viable fetus pregnancy constitute an “abortion” under Idaho law?

Not for purposes of the total abortion ban. The Idaho Supreme Court stated,

The Total Abortion Ban only prohibits “abortion[s] as defined in [Title 18, Chapter 6],” I.C. § 18-622(2)—and ectopic and non-viable pregnancies do not fall within that definition. For purposes of the Total Abortion Ban, the only type of “pregnancy” that counts for purposes of prohibited “abortions” are those where the fetus is “developing[.]” See I.C. §§ 18-622(2), -604(11)…⁶

This conclusion is consistent with I.C. § 18-617, which is structured so that the prohibition on chemical abortions does not apply to treatment of ectopic pregnancies.⁷

The Idaho Supreme Court confirmed that the foregoing analysis does not apply to liability under Idaho's 6-week ban (to the extent it is not superseded by the total abortion ban) or the civil liability statute; however, the 6-week ban and the civil liability statute both contain a “medical emergency” exception that, according to the Court, would apply to ectopic and non-viable pregnancies. ⁸

3. Under what circumstances may an abortion be performed in Idaho?

Significantly, whether the abortion is “necessary to prevent the death of the pregnant woman” and “perform[ed] in a manner that provides the best opportunity for the unborn child to survive” are measured by the physician's subjective good faith. As explained by the Idaho Supreme Court:

The plain language of [“the life of the mother”] provision leaves wide room for the physician's “good faith medical judgment” on whether the abortion was “necessary to prevent the death of the pregnant woman” based on those facts known to the physician at that time. This is clearly a subjective standard, focusing on the particular physician's judgment. [T]he statute does not require objective certainty, or a particular level of immediacy, before the abortion can be “necessary” to save the woman's life. Instead, the statute uses broad language to allow for the “clinical judgment that physicians are routinely called upon to make for proper treatment of their patients.” See Spears v. State, 278 So.2d 443, 445 (Miss. 1973) (“This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.”). ¹⁰

1. Abortions of a clinically diagnoseable pregnancy are illegal unless the abortion is performed by a physician and:
   1. The physician determines the abortion is necessary to prevent the death of the pregnant woman and the physician performs the abortion in a manner that provides the best opportunity for the unborn child to survive; or
   2. In the case of rape or incest, the woman reported the rape or incest to law enforcement and provides a copy of the report to the physician prior to the abortion; or
   3. In the case of rape or incest of a woman who is a minor or subject to guardianship, the woman, her parent, or her guardian reported the rape or incest to law enforcement and provides a copy of the report the physician prior to the abortion. ⁹
2. In addition, given the federal district court’s preliminary injunction, abortions may be performed to the extent required by EMTALA, i.e.,
   1. A pregnant woman comes to a hospital or hospital-based urgent care center seeking emergency care;¹¹
   2. Practitioners at the hospital determine that abortion is necessary to avoid (a) placing the health of the pregnant woman in serious jeopardy; (b) a serious impairment to bodily functions of the pregnant woman; or (c) a serious dysfunction of any bodily organ or part of the pregnant woman;¹² and
   3. The pregnant woman has not been admitted as an inpatient at the hospital.¹³
3. Partial-birth abortions are prohibited unless necessary to save the life of the pregnant woman.¹⁴ The federal district court did not address partial-birth abortions in the EMTALA lawsuit.
4. Chemical abortions are likely prohibited unless necessary to save the life of the mother, or in the case of rape or incest, or to treat ectopic pregnancies.¹⁵ It is not entirely clear whether the total abortion ban in § 18-622 would supersede the chemical abortion statute: neither the Idaho Supreme Court nor the federal district court addressed the interaction between § 18-617 and § 18-622.

4. What are the penalties for attempting, performing, or assisting in an illegal abortion?

1. Any person who performs or attempts to perform an illegal abortion commits a felony punishable by: (i) between two (2) and five (5) years in prison; and (ii) suspension of his/her professional license for at least six (6) months for a first offense, and permanent revocation for subsequent violations.¹⁶
2. Persons who assist in an illegal abortion are subject to suspension of his/her professional license for at least six (6) months for a first offense, and permanent revocation for subsequent violations.¹⁷ Section 18-622 does not define what constitutes “assisting” in the abortion, but it likely refers to healthcare professionals who actually assist in the clinical aspects of the abortion given the context in which “assist” is used in other abortion statutes¹⁸ as well as the fact that the penalty is limited to adverse professional licensure actions, which indicates that only licensed healthcare professionals may be liable for “assisting” in the illegal abortion. Section 18-622 does not impose any penalty against other non-licensed persons for assisting in an abortion.
3. It is not entirely clear to what extent a person who acts as an accomplice or accessory or who aids and abets an abortion in Idaho may be criminally liable.
   1. Persons who act in good faith on the order or under the direction of a licensed physician are generally protected from liability for illegal abortions. For example, no hospital, nurse, or other healthcare personnel are deemed to act as an accomplice or accessory to an illegal abortion if they provide services in good faith in reliance on the directions or order of a physician.¹⁹
   2. Idaho Code § 18-606 states that a person who acts as an accomplice or accessory “to any violation of section 18-605” commits a felony and (i) shall be fined up to $5,000, and (ii) imprisoned from one (1) to five (5) years.²⁰ Idaho's new total abortion ban, § 18-622, effectively supersedes § 18-605, but makes no reference to § 18-606. Instead, § 18-622 states that those who assist in an illegal abortion shall be subject to suspension or revocation of his/her professional license,²¹ but it does not extend criminal liability to those who assist. Accordingly, it appears that the legislature intended to put in place a new penalty structure through § 18-622 that supersedes § 18-606 and § 18-606 is no longer enforceable.
   3. Idaho's general criminal statutes states that “[a]ll persons concerned in the commission of a crime, … whether they directly commit the act constituting the offense or aid and abet in its commission, or, not being present, have advised and encouraged its commission … are principals in any crime so committed.”²² “To ‘aid and abet' means to assist, facilitate, promote, encourage, counsel, solicit or incite the commission of a crime.”²³ It is possible that a prosecutor might rely on the general “aiding and abetting” statute to prosecute those who facilitate an illegal abortion; however, as discussed above, by failing to modify § 18-606 to refer to § 18-622 and/or establishing a separate, specific penalty for those who “assist” in an abortion in § 18-622, the legislature arguably intended to foreclose “aiding and abetting” claims against those who are not performing or actually “assisting” in the abortion.

5. May a pregnant woman be prosecuted for obtaining an abortion?

The Idaho Supreme Court affirmed that “the Total Abortion Ban does not subject the mother to any criminal penalties, I.C. 18-622(5).”²⁴ However, that statute states, “nothing in this section” shall be construed to subject a woman to criminal liability for an abortion.²⁵ A different section, § 18-606(2), still states that a woman who knowingly submits to or solicits an illegal abortion for herself is guilty of a felony and (i) shall be fined up to $5,000, and (ii) imprisoned from one (1) to five (5) years.²⁶ The Idaho Supreme Court did not address the interaction between §§ 18-622(5) and 18-606(2). Consequently, it may not be entirely clear whether a pregnant woman may be prosecuted, although one would assume that § 18-622 was intended to supersede § 18-606(2) and protect pregnant women from prosecution.

6. May providers be sued for performing an abortion?

1. If an abortion is attempted, induced, or performed after a fetal heartbeat is or should have been detected,²⁷ the mother, father, grandparent, sibling, aunt, or uncle of the preborn child may sue medical professionals who knowingly or recklessly attempted or performed the abortion²⁸ unless:
   1. There is a medical emergency, i.e., “a condition that … so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function”;²⁹ or
   2. In the case of rape or incest, the woman reported the rape or incest to law enforcement and provided a copy of the report to the physician prior to the abortion;³⁰ or
   3. In the case of rape or incest of a woman who is a minor or subject to guardianship, the woman, her parent, or her guardian reported the rape or incest to law enforcement and provided a copy of the report to the physician prior to the abortion;³¹
   4. The person bringing the lawsuit impregnated the mother through rape or incest;³² or
   5. Presumably, the provider performed the abortion consistent with and pursuant to her/his obligations under EMTALA.
2. The plaintiffs in a successful lawsuit may recover (i) damages, (ii) statutory damages of at least $20,000, and (iii) costs and fees.³³
3. A court may not award costs and fees to the defendant unless the defendant can prove that the defendant (i) conducted an appropriate test to determine if there is a fetal heartbeat before the abortion was performed, (ii) recorded the information about the test in the woman's medical record, and (iii) otherwise complied with the requirements for an appropriate abortion.^{34 35}

7. Who may perform an abortion?

1. Under Idaho law, only physicians may lawfully perform an abortion.³⁶ It may be that other practitioners may perform the abortion if necessary to comply with EMTALA.
2. Only licensed physicians and those licensed or registered healthcare providers acting under the direct supervision or on the order of a physician may advertise items or services to induce an abortion; others who do so are guilty of a felony.³⁷

8. Where may abortions be performed?

1. During the first 13 weeks of pregnancy, abortions may be performed (i) in a hospital or (ii) in a physician's regular office or a clinic, which office or clinic is properly staffed and equipped and has a satisfactory arrangement with a local hospital to render emergency care if needed.³⁸
2. After 13 weeks of pregnancy, abortions must be performed in hospitals.³⁹

9. What limits apply to abortifacients?

1. Under Idaho law, “abortifacients” are defined to include mifepristone, misoprostol, and/or other chemical or drug used to cause an abortion. However, the term does not apply to the use of such drugs to treat ectopic pregnancy.⁴⁰
2. Persons may not sell or advertise abortifacients unless (i) the sale, offer, or display is to a physician or druggist or their intermediary; or (ii) the sale is made upon prescription or order of a physician.⁴¹
3. No physician may give, sell, dispense, administer, prescribe, or provide an abortifacient to effect a chemical abortion unless the physician (i) may assess the duration of the pregnancy accurately; (ii) has determined, if clinically feasible, that the unborn child is within the uterus and not ectopic; (iii) can surgically intervene in cases of incomplete abortion or severe bleeding, or, if the physician does not have admitting privileges at a local hospital, has made a documented plan and arrangements with other physicians to provide emergency care; (iv) provides required information as described more fully below; and (v) makes reasonable efforts to ensure that the patient returns for a follow-up visit to confirm that the pregnancy has been terminated and to assess the patient's medical condition.⁴²
4. As discussed above, the limits on the use of abortifacients do not apply to ectopic pregnancies.⁴³

10. What physical, mental, or emotional conditions of the mother will permit abortions?

1. Abortions may be performed to save the life of the pregnant woman.⁴⁴ This does not include situations in which the pregnant woman may or will take action to harm herself.⁴⁵
2. As discussed above, it appears that chemical abortions may be performed to treat ectopic pregnancies.⁴⁶
3. As discussed above, if EMTALA applies, abortions may be performed if necessary to avoid (a) placing the health of the pregnant woman in serious jeopardy; (b) a serious impairment to bodily functions of the pregnant woman; or (c) a serious dysfunction of any bodily organ or part of the pregnant patient woman.⁴⁷ According to HHS, “[e]mergency medical conditions involving pregnant patients may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.”⁴⁸

11. May an abortion be performed if the fetus has conditions that make viability improbable or that may result in severe birth defects?

As discussed above, the Idaho Supreme Court concluded that the total abortion ban does not apply to non-viable pregnancies, and the “medical emergency” exception would likely apply in the case of the 6-week ban or civil liability law.⁴⁹ However, that exception would appear not to apply if the child may be born alive with severe birth defects.

12. What procedures must be followed before performing an abortion?

Physicians, hospitals, and other facilities performing an abortion must do the following:

1. Except in the case of a medical emergency, determine the probable post-fertilization age of the unborn child through appropriate tests, examinations, and inquiries of the pregnant woman.⁵⁰ However, this requirement is part of Idaho's 20-week abortion ban, I.C. § 18-501 et seq. That ban along with the requirement to determine the post-fertilization age of the unborn child would appear to be moot given the total abortion ban.
2. Obtain informed consent from the pregnant woman.⁵¹ A physician, hospital, or other facility may refuse to perform an abortion if the pregnant woman refuses regardless of her age or competence.⁵²
3. Except in the case of a medical emergency, at least 24 hours before the abortion is performed, the physician, hospital, or other facility must comply with the following:
   1. Provide to the patient information published by the Idaho Department of Health and Welfare (DHW) concerning abortions. The information is available at here. The attending physician or his/her agent must certify that the information was timely provided as required.⁵³
   2. The attending physician or her/his agent must inform the patient by telephone or in person that (i) ultrasound imaging and heartbeat monitoring are available so that the woman may view the unborn child; and (ii) the DHW information and website described above list facilities that offer such services at no cost. If the woman contacts the abortion facility by e-mail, the facility must inform the woman of the foregoing information in a larger font than the rest of the e-mail.⁵⁴
4. Do not collect a fee for an abortion until after providing the required information to the pregnant woman.⁵⁵
5. If an ultrasound is used to perform an abortion, prior to the abortion the physician or her/his agent must (i) inform the woman that she has the right to view the ultrasound image of her unborn child before an abortion is performed; (ii) if requested, allow the woman to view the ultrasound; (iii) offer a physical picture of the ultrasound image; and (iv) provide such other information which in the attending physician's judgment is relevant to the woman's decision concerning the abortion.⁵⁶
6. For chemical abortions, the physician must satisfy the following: (i) have the ability to assess the duration of the pregnancy; (ii) determine, if clinically feasible, that the unborn child to be aborted is within the uterus and not ectopic; (iii) have the ability to provide surgical intervention if needed or, if the physician does not have admitting privileges at a local hospital, the physician must have a documented plan to provide emergency care through other qualified physicians; (iv) have a written agreement with such other physicians to provide emergency care if required; (v) inform the pregnant woman that she may need access to medical facilities equipped to provide blood transfusions and resuscitation, if necessary; (vi) if the appropriate medical facility is other than a local hospital emergency room, the physician must provide the patient with the name, address, and telephone number of such facility in writing; and (vii) make reasonable efforts to ensure the patient returns for a follow-up visit to confirm that the pregnancy has been terminated and to assess the patient's condition.⁵⁷
7. Except in the case of a medical emergency, before performing or inducing an abortion, determine whether there is a fetal heartbeat, and record in the pregnant woman's record whether or not the heartbeat is present, the estimated gestational age of the preborn child, the testing method, and the date and time of the test.⁵⁸ This requirement is intended to implement Idaho's fetal heartbeat law, the criminal portions of which were superseded by Idaho's total ban on abortions.⁵⁹ It is, however, relevant to any defense of a civil lawsuit, especially if the healthcare professional seeks to recover costs and fees.⁶⁰

13. May an unemancipated minor consent to their own abortion in Idaho?

1. Under Idaho law, the attending physician must generally secure written consent to perform an abortion on an unemancipated minor from one of the following: (i) one of the minor's parents or the minor's guardian or conservator;⁶¹ or (ii) a district court judge after an appropriate hearing.⁶²
2. The attending physician is not required to obtain parental or judicial consent if either: (i) the pregnant minor certifies that the pregnancy resulted from rape or sexual conduct with the minor's parent, stepparent, uncle, grandparent, sibling, adoptive parent, legal guardian, or foster parent; or (ii) a medical emergency exists, and the attending physician documents the emergency in the minor's medical record.⁶³
3. Physicians performing an abortion on an unemancipated minor are protected from criminal or administrative liability based on the failure to obtain informed consent if (i) prior to performing the abortion, the physician obtains either positive identification or other documentary evidence from which a reasonable person would have concluded that the woman seeking the abortion was either an emancipated minor or was not then a minor, and (ii) the physician retained a legible photocopy of such evidence.⁶⁴

14. What are the reporting requirements for abortions?

1. Within 15 days after an induced abortion, the attending physician must complete, file, and submit the induced abortion reporting form to the Bureau of Vital Statistics.⁶⁵ See https://healthandwelfare.idaho.gov/providers/vital-records/vital-records.
2. If the physician performed an abortion without providing the required DHW and ultrasound information described above to the patient, within 30 days after the abortion the attending physician or his/her agent must deliver to DHW a report signed by the attending physician denoting the medical emergency that excused compliance with the requirement to provide the information. The report should preserve the anonymity of the patient.⁶⁶

15. What are the penalties for failing to comply with the procedures or reporting requirements for abortions?

An attending physician who performs an abortion but knowingly fails to provide the required information, offer an ultrasound, or report the abortion as described above (i) may be subject to professional discipline; (ii) shall be fined $100 for each month of noncompliance; and (iii) may be subject to civil contempt sanctions.⁶⁷ In addition, physicians who fail to timely submit the report containing information concerning post-fertilization age may be subject to a $500 fine for each 30-day period the report is late.⁶⁸

16. Are physicians, hospitals, or other facilities required to perform abortions?

Under Idaho law, no healthcare professional shall be required to render any healthcare service that violates his or her conscience,⁶⁹ provided that (i) the professional may not engage in illegal discrimination;⁷⁰ and (ii) in a life-threatening situation, the professional must provide treatment and care until an alternate healthcare professional capable of treating the emergency is found.⁷¹ Similarly, hospitals may generally elect not to furnish facilities or admit patients for abortion,⁷² but they may still be obligated to comply with laws such as EMTALA that require appropriate emergency care or treatment of patients who have been admitted.