State says health boards don’t want Idaho Supreme Court to overturn abortion ban

Three of Idaho’s health licensing boards have asked the Idaho Supreme Court not to delay enforcement of Idaho’s abortion ban while the case against the ban works its way through the courts.

Hearings are set for Aug. 3 in two separate cases regarding Idaho’s abortion laws. In both cases, Planned Parenthood Great Northwest and one of its Idaho abortion providers, Dr. Caitlin Gustafson, sued the state and various people and organizations involved in implementing the law.

Planned Parenthood named the Idaho Medical Board, the Idaho Board of Nursing and the Idaho Board of Pharmacy in its latest lawsuit — over Idaho’s “trigger law” that criminalizes abortion services — because those boards can suspend and revoke the licenses of health care practitioners specialists after the ban comes into force.

The boards oversee the education, training and licensing of most of Idaho’s primary care providers, including those who provide abortion care or have patients who may seek abortion. The boards do not represent doctors, nurses or pharmacists the way a trade association does — by advocating for its members to the Idaho Legislature.

But their mission puts them in a unique position when it comes to abortion law. The boards are charged with ensuring that the professionals they license provide safe and quality health care to patients. They will also soon be responsible for ensuring that these professionals do not perform abortions under a law that some health care providers say is too vague.

“Idaho’s trigger law lacks clarity and puts patients at risk. The IAFP is concerned about any rush to implement the law, particularly as it lacks clarity on important aspects of reproductive health care delivery.

— Liz Woodruff, executive director of the Idaho Academy of Family Physicians

The Idaho Medical Board, the Idaho Board of Nursing and the Idaho Board of Pharmacy last week asked the Idaho Supreme Court to reject Planned Parenthood’s request to suspend the law in a June 29 statement written by Idaho Deputy Attorney General Dayton P. Reed. while lawsuits are pending in court.

“There are no arrest proceedings: no court or board has enforced (the law),” wrote Reed, representing the state and the boards. “And (the request for a stay of execution) seeks to stay proceedings by third parties who are not defendants in this case: all Idaho courts and law enforcement officials.”

The Idaho Capital Sun asked the Idaho Attorney General’s office and the Division of Occupational and Professional Licensing whether board members or the executive director were consulted before the state made its latest filing on the case.

“We’re not going to comment on that aspect,” said Scott Graff, public information officer for the AG’s office.

“I can’t comment on any pending litigation,” said Bob McLaughlin, public information officer for the Division of Occupational and Professional Licensing, the umbrella agency that now includes all of Idaho’s licensing boards.

Although the boards have their own lawyers, they are also government bodies. So they can be represented by the Idaho Attorney General.

“The Board of Medicine, the Board of Pharmacy and the Board of Nursing are represented by the Idaho Attorney General’s Office,” McLaughlin said. “The state’s position will be set out in the pleadings filed (with) the court.”

The Idaho Abortion Trigger Act was passed in 2020

Idaho’s “trigger law” was passed by the Idaho Legislature and signed by Gov. Brad Little in 2020. It makes abortion services a felony and takes effect 30 days after the U.S. Supreme Court formally struck down the constitutional right to abortion under Roe v. Wade.

That could mean that unless the Idaho Supreme Court rules on the Planned Parenthood case by mid-August, abortion providers could face discipline for their jobs.

Anyone who performs or attempts to perform an abortion can be convicted of a felony with a sentence of two to five years in prison.

“The remedy sought by the petitioners must be sought in the Legislature or at the ballot box.”

– Dayton P. Reed, Idaho Deputy Attorney General, in Idaho Supreme Court Lawsuit Over Abortion Trigger Law

If prosecuted, an abortion provider can defend itself by showing that the abortion meets certain criteria:

  • to “prevent the death of the pregnant woman”
  • was carried out in a way that “provides the best chance for the survival of the unborn child”
  • if the pregnant woman or the girl’s parent or guardian reports an “act of rape or incest to a law enforcement agency” and gives the doctor a copy of the police report

However, the health care provider will be required to prove in court that the abortion is more likely to be permitted than not under these exceptions.

There is also no exception when a patient seeking an abortion threatens to harm or kill herself if she cannot terminate the pregnancy.

Doctors and other health care providers who violate the law — performing, attempting or assisting in an abortion — also face professional discipline. Their licenses will be suspended for at least six months on the first offense and permanently revoked if they break the law again.

For at least the past decade, it has been very rare for the Idaho Board of Medicine, the Idaho Board of Nursing, or the Idaho Board of Pharmacy to permanently revoke a license.

How Will Idaho’s Abortion Law Apply in Real-World Circumstances?

Health care providers in Idaho are still trying to figure out how the law will apply in real-life situations.

In theory, abortions can be performed by any doctor who is trained in abortion care. However, not all doctors perform abortions through medication or surgery.

But the law could affect the practice of many family physicians, obstetricians and gynecologists — whose patients have for decades been able to choose whether to terminate their pregnancies because they were unplanned or for medical or other reasons.

Dr. Lauren Colson is a family medicine physician who provides her patients with pregnancy counseling that includes abortion as an option.

“The question for us becomes: When is it considered necessary to prevent the death of a pregnant woman?” Colson said. “Is it when there is a complication that they can die from? Or (when the abortion would) prevent a complication from which they could die?”

Patients can have complications that he says are unclear in the law: ectopic pregnancy, fatal chromosomal abnormalities, women at high risk for life-threatening conditions such as preeclampsia, or situations where the water breaks prematurely — putting both patients at risk of infection or sepsis, and requiring the mother to either give birth to a fetus that cannot survive outside the womb, or to try to stop the labor and hope that antibiotics will stop the infection.

There are cases when the water breaks prematurely and the patient must either give birth or try to hold off the labor and hope that antibiotics will prevent infection or sepsis.

The Idaho Academy of Family Physicians “is very concerned” about how the law will affect doctors and their ability to care for patients.

“Idaho’s trigger law is so vague that it creates a series of gray areas in the delivery of care to pregnant patients,” said Liz Woodruff, executive director of the Idaho Academy of Family Physicians.

This is likely to lead to confusion about how to treat conditions such as:

  • miscarriages, in which the fetus dies but does not leave the uterus;
  • lethal conditions in a developing fetus, such as when a vital organ such as the brain never develops;
  • and ectopic pregnancy, which is non-viable and dangerous because the fertilized egg is stuck in the fallopian tube.

In a June 24 statement, the academy said it “strongly opposes any outside interference in the (healthcare) process because it goes against the basic medical principle of patient autonomy and disrupts the patient-physician relationship.” The policy would also “criminalize the patient-physician relationship and impede the delivery of safe and timely comprehensive care,” it said.

The law “will complicate the delivery of timely medical care, placing doctors in uncertain legal situations and therefore putting patients at risk,” Woodruff said.

For health advice

The Boards of Medicine, Nursing and Pharmacy have authority over most health care professionals in Idaho. This includes physicians, assistants, nurses, nurse practitioners, pharmacists and others who care for patients in Idaho.

The boards do not have authority over some other professions, such as midwives who are not licensed nurses.

Boards of Directors consist primarily of people licensed in each profession and a small number of members who represent the public or other interested parties.

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