Containing the pro-abortion backlash

Pro-lifers nationally and even leading pro-life groups in the state of Idaho have put forward a united front in their support for Idaho’s protections for unborn babies. But behind the talking points, some pro-lifers in the state have long had concerns about possible legal consequences of the law. In meetings last year, some leading pro-life groups in the state even considered broadening the law’s exceptions.

Idaho has two pro-life laws in effect, which lawmakers adopted at different times for different reasons. The strictest of the two, known as the Defense of Life Act, protects unborn babies from abortion starting at conception except in cases of rape, incest, or risk to the mother’s life. It does not make an exception for broader medical emergencies that threaten a major bodily function of the mother.

The Defense of Life Act passed in 2020 with a clause that would trigger it to take effect 30 days after the U.S. Supreme Court issued a decision allowing states to protect unborn life. The court’s ruling in Dobbs v. Jackson Women’s Health Organization did just that in June 2022. Fewer than two months later, the federal government sued Idaho a few weeks before the law was scheduled to take effect.

The Biden administration argues that the law prevents doctors from performing abortions in emergencies that put a woman’s bodily health but not her life at risk, thereby violating the federal Emergency Medical Treatment and Labor Act, known as EMTALA. The U.S. Supreme Court heard oral arguments in the case in April and will rule this summer. Pro-abortion groups claim the law puts pregnant women at risk and has resulted in an exodus of physicians from the state.

To Blaine Conzatti, president of the Idaho Family Policy Center, this legal challenge didn’t come as a surprise. In 2021, his organization drafted a bill to protect unborn babies once they have detectable heartbeats, and the group intentionally included a medical emergency exception.

“We were foreseeing this type of challenge in the court that eventually came to be, and we tried to avoid it with the most narrowly tailored medical emergency exception that we thought could square with the federal government’s interpretation of EMTALA,” Conzatti said.

As the law stands now, the heartbeat bill would become Idaho’s de facto pro-life law if the stricter Defense of Life Act were overturned.

The heartbeat bill passed in April 2021 with language that allows abortions if a woman experiences a condition necessitating “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.”

David Ripley, executive director of Idaho Chooses Life, said that that exception was one of the reasons why his organization opposed the bill. He called it immoral to prioritize the health of one person—in this case, the woman—over the life of another person—the baby. The Defense of Life Act protecting babies starting at conception, Ripley said, “is designed to make it hard to kill a baby. It should be a difficult situation to make that judgment. And we want doctors to be sure that there is, in fact, a life-threatening condition.”

Dr. Stephen Schmid, a retired surgeon who practiced in Twin Falls, Idaho, observed this divide between the state’s pro-life groups when he entered their circles for the first time last year. He and some friends were concerned that backlash to the Defense of Life Act would fuel support for a pro-abortion initiative that would undo the state’s pro-life protections entirely and establish a right to abortion in the state. So after some Idaho pro-life leaders met with Schmid, they convened as a working group in fall of 2023 to discuss possible changes to the law.

Schmid hoped to persuade advocates to push for adding language to the existing abortion law that would bring its medical exceptions in line with the medical emergency standard in the heartbeat bill. In his mind, the law did not provide physicians with enough guidance to determine when a woman’s condition qualified her for a legal abortion.

The working group consisted of about a dozen people—their specialties ranging from physicians and ethicists to lawyers and lobbyists. Conzatti, of the Idaho Family Policy Center, was a part of the group along with Christian Welp, a lobbyist with the Roman Catholic Diocese of Boise and a representative of Right to Life of Idaho. Idaho Chooses Life’s Ripley did not attend the meetings.

The group met in Boise at the chancery office of the diocese a handful of times between fall 2023 and early 2024 to discuss possible medical emergency language.

Before those meetings, Schmid wasn’t formally involved with the pro-life movement. He said the disagreement among the group members surprised him.

According to Conzatti, many of the meeting’s attendees—including himself—initially wanted to proceed with a medical emergency exception that would moot the ongoing court challenge. But Idaho Chooses Life, which penned the Defense of Life Act, would not have been on board

“It doesn’t look good when pro-life community is divided and fighting against each other, especially down at the capitol. And that’s what would have ensued,” Welp with the Catholic Diocese said.

Conzatti said that, as the group continued to meet, developments in the ongoing legal battle over the law changed his mind until he became convinced that new language was no longer necessary. An original court ruling from 2022 had prevented the state from enforcing its abortion law in situations that threaten a woman’s health, but a ruling from the 9th U.S. Circuit Court of Appeals at the end of September 2023 allowed the law to take full effect. That victory was only temporary but showed supporters the law had a chance. In January, the U.S. Supreme Court agreed to take up the case, allowing the law to take full effect once more as litigation continued.

Schmid wasn’t satisfied with the outcome of the meetings. “We’re kicking the can down the road,” he said. He understands the argument that it’s immoral to trade a woman’s bodily function for the life of a baby. “But I felt, we live in a secular society, and we have to make some sort of compromises to preserve the basic anti-abortion law,” Schmid said.

Just last month, an Idaho organization announced plans to put a ballot measure before voters in 2026 that would legalize abortion again in the state, citing the legislature’s inaction to amend the existing law in the most recent session.

But Conzatti and Welp see benefits to not moving forward with the amendment. They both pointed out that the Idaho Supreme Court in January 2023 already upheld the law. In that decision, justices said the language of the life of the mother exception gives room for doctors to use their clinical judgment in individual cases and doesn’t hold them to an objective standard for determining when a condition threatens a woman’s life. Conzatti and Welp also said the U.S. Supreme Court could provide even greater clarity on how the law interacts with federal statutes.

“In terms of just on the ground, would we be comfortable with a medical emergency exception? Potentially,” Conzatti said. “But if the U.S. Supreme Court rules that EMTALA does not require hospitals to provide abortion in cases of medical emergency, then we would certainly prefer the life of the mother exception that, at least in theory, gives greater protection to preborn babies.”

Welp said adding the exception wouldn’t have been enough to satisfy pro-abortion opponents anyway. He said he and Conzatti have met with the legal counsel for the Idaho Medical Association, who communicated that the statewide medical group wants a broader health exception. Historically, the wide-reaching mental health concerns included under that type of exception essentially open the door to elective abortions.

“And there’s no way we’re going there. No way. We’re all united there,” Welp said. “But at the same time, the opposition—that’s all they want.”