New York recently passed a law allowing any licensed medical physician, in any clinic, to perform an abortion all the way up to the point of birth, then held a massive celebration. Virginia tried it as well, and only narrowly failed – for now.
…the personhood of the unborn is explicitly codified into state law.
But as disheartening as these developments may be, other states are working to protect the sanctity of life for the unborn. A new bill in the Idaho legislature would completely ban abortion, making any doctor who performed the procedure guilty of murder. Can it be true? Will Idaho pull off this victory against legalized infanticide? Almost certainly, at least in the beginning. It’s not at all unreasonable to expect the massive Republican majorities in both houses to pass the bill, or for the pro-life governor to sign it.
Legal challenges, however, will almost certainly follow. The true question is not whether it can pass, but how long it will last. And in exploring that question lies some interesting possibilities.
Getting Away with Murder
According to Idaho Code 32-102:
“UNBORN CHILD AS EXISTING PERSON. A child conceived, but not yet born, is to be deemed an existing person so far as may be necessary for its interests, in the event of its subsequent birth.”
Article 1 Section 1 of the Idaho Constitution states:
“SECTION 1. INALIENABLE RIGHTS OF MAN. All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.”
However, in stark contrast to this, stands the Title 18 Chapter 40 exception to the homicide rule:
“(1) For purposes of this chapter ‘embryo’ or ‘fetus’ shall mean any human in utero.
(2) Nothing in this chapter, arising from the killing of an embryo or fetus, shall be construed to permit the prosecution:
(a) Of any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;
(b) Of any person for any medical treatment of the pregnant woman or her embryo or fetus; or
(c) Of any woman with respect to her embryo or fetus.
(3) Nothing in this chapter is intended to amend or nullify the provisions of chapter 6, title 18, Idaho Code.”
In many states, an unborn child is considered person enough to have the right not to be murdered by a violent criminal, yet, somehow, not person enough to be protected from his or her own mother. Idaho, however, is a little different. While this stipulation does grant an exception for abortion, the personhood of the unborn is explicitly codified into state law.
Introduced by Republican Reps. Heather Scott of Blanchard and John Green of Rathdrum, the Idaho Abortion Human Rights Act would remove the exception.
What about Roe?
The patrons of this bill claim that it is not designed as a test to see how the new Supreme Court would address the issue of abortion – it’s not intended to get Roe v Wade overturned. However, they do acknowledge that this particular ruling does conflict with their proposed changes. They recognize that “the courts render opinions that are sometimes unconstitutional and that the State of Idaho and its officers are bound by oath to original interpretation of the constitutions.”
If successful, this won’t be the first time the Gem State goes against federal overreach. In 2014, Idaho passed the Federal Firearm, Magazine, and Register Ban Enforcement Act, which directs state officials to ignore any federal regulation that violates the Idaho Constitution in regards to the right to bear arms.
A Snowball’s Chance?
The Idaho House is made up of 56 Republicans and only 14 Democrats, and the GOP holds a 28-seven lead in the Senate, as well. And don’t forget the firearms protection mentioned above – it was passed unanimously by both houses, and there were Democrats around back then, too. Add to that a pro-life governor, and the bill seems bound to sail through.
The question is: Can it stand before the onslaught of legal challenges sure to follow? Let’s take another look at Roe v. Wade. Justice Harry Blackmun pointed out in footnote 54 the problem with Texas claiming personhood status for the unborn:
“When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained [410 U.S. 113, 158] in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother’s condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment’s command?”
That is an entirely legitimate point – and one that Ohio would not run afoul of, should they remove the allowance for abortion.
Will this bill be signed into law, only to have the federal courts attempt to stop it? Idaho is under the notoriously liberal Ninth Circuit – often called the Ninth Circus – court of appeals. Would the change make its way to the Supreme Court? And finally, what happens if the law is blocked judicially, and state officials decide to ignore the ruling? The sponsors of the bill have declared their duty to uphold the state and U.S. constitutions regardless of what even the Supreme Court rules. What would happen should they choose to defy federal courts in this matter, as the state’s 2014 ban on unconstitutional firearms laws shows they might?