Four women, who had to leave Idaho to receive care for wanted pregnancies, are challenging the state’s abortion bans and asking it to clarify the conditions in which patients are allowed to terminate a pregnancy.
The plaintiffs, which include both patients and physicians, say the abortion bans go against their constitutional rights to happiness and safety. The lawsuit does not seek to allow abortions in all cases, but wants the current law to allow patients with complications, pre-existing conditions and lethal fetal diagnosis to access care. Under Idaho code, only mothers at imminent risk of death can get abortions, as well as rape and incest victims.
Representing the plaintiffs, attorney Gail Deady called the state’s abortion bans “unworkable.”
“The state appears to believe that the lives and health of living, breathing, pregnant Idahoans, people's sisters, mothers, wives, friends are inherently less valuable than a developing fetus or embryo,” she said in her opening statement. “And that continued pregnancy and childbirth must be forced in all situations and at all costs, except when both the woman and the developing pregnancy would be lost without an abortion.”
In his opening statement, Deputy Attorney General James Craig called Idaho’s abortion laws “very, very clear.”
“Unborn children have a fundamental right to life, and protecting the lives of unborn children is a legitimate and a compelling governmental interest,” he said. Craig called second trimester abortions “gruesome and barbaric,” and said while the Idaho Constitution does not guarantee the right to fertility, the state’s abortion laws shield “unborn children” from pain.
Craig speculated the plaintiffs’ definition of an emergency medical condition would include “just about any potential health issue that any pregnant woman could face, no matter how minor or how treatable.”
As an example, he described a pregnant woman stepping on a rusty nail and how it could lead to an infection threatening her life. “Never mind that there is a simple treatment for stepping on a rusty nail, and that's simply to get a tetanus booster shot,” he said.
The women testified Tuesday in front of Fourth District Judge Jason Scott, describing how they had to leave the state to get the healthcare they needed for non-viable pregnancies. They described the grief of losing their wanted pregnancies and spoke of the added psychological distress caused by having to leave the state.
Lead plaintiff Jennifer Adkins was 12 weeks pregnant when an ultrasound revealed her baby had a condition likely to result in either a stillbirth or a miscarriage which could also severely affect her health. In April of 2023, she and her husband left the state to terminate the pregnancy.
“Medical Refugees” of their own state
“We were terrified during that drive not only because again we felt like we were being made as refugees, medical refugees of our own state, but also the fact that I still had this pregnancy, that I could miscarry,” she said, describing the couple’s concern when traveling through northern Oregon’s mountains without cell service and no way to contact emergency services if she started hemorrhaging.
Rebecca Vincen-Brown from Kuna described how at 16 weeks, a series of tests showed her baby was missing several organs and had not been developing as needed to survive. Doctors told her she was at risk of miscarrying and carrying the pregnancy to term would potentially affect her future fertility.
“We decided for my own personal health to be there for my daughter that was living and with my husband and my family, we decided to abort,” Vincen-Brown said.
After a dilation procedure in a clinic in Portland, she described how she delivered her deceased baby in a hotel room. She said she wished she could have received care in Idaho, with the help of doctors she trusted.
“I wouldn't have been giving birth to a baby while my two-year-old daughter was on the other side of the wall,” Vincen-Brown said tearfully, “and I wouldn't have to be dealing with the extra trauma of it.”
Deputy Attorney General Craig objected to detailed testimony of the women’s pregnancies and the conversations they had with their medical team. He said the case did not depend on the medical circumstances of the plaintiffs. Judge Scott said he suspected the case would not be decided on that basis either, but allowed the women some leeway to address the topics. The defendant’s team did not ask many questions of the four women.
Most of the day was dedicated to plaintiffs’ testimonies, including from Dr. Emily Corrigan, an OB-GYN at Saint Alphonsus. She said providing abortions in certain cases is the national standard and described the different ways delayed care impacts women’s health and fertility.
Trial Day 2: "Legal jargon"
On day two of the trial, Dr. Nichole Aker testified on behalf of the plaintiffs. Aker, a family medicine physician practicing in Mountain Home, said deciding when a pregnant woman’s life is in danger and when medical intervention would be allowed is very hard to determine because the law doesn’t use medical terms.
“This is legal jargon that I wasn't trained to understand in medical school," said Aker. "There's no definition medically for what those mean. At what point do I have to be certain someone will die in order to intervene in their pregnancy? And pregnancy is a high risk state anyway.”
Dr. Emily Corrigan, an OB-GYN with Saint Alphonsus, testified women in the Treasure Valley who have to go out of state for abortion care have to drive five to seven hours through rural areas without consistent cell phone coverage and no medical services.
During this time, according to Corrigan, the women's condition could decline.
"They could develop an infection, become febrile, become septic. They could start bleeding due to a placental abruption. They could deliver the fetus in route."
The trial proceedings continue Thursday morning at 9 a.m.
Trial Day 3: Unclear on Idaho's laws, doctors are directing women out of state
Idaho’s laws don’t include medical exceptions to preserve a woman’s health.
This lawsuit, filed by the Center for Reproductive Rights, seeks to change that.
Doctors testifying Thursday described how the lines drawn in Idaho’s bans are confusing.
Dr. Ali Raja is Deputy Chair of Emergency Medicine at Massachusetts General Hospital. He was called as an expert witness.
"It's just impossible for us to know if treating or not treating will lead to death or simply worsening of illness, loss of fertility or a number of other complications," he said.
Dr. John Werdel, an OB-GYN at St. Luke’s Health System in Boise, testified that physicians are not trained to wait to prevent the death of their patient.
“We were trained to intervene early to try to prevent complications that could occur down the line. And waiting until near the end or until someone’s sick just doesn’t comport to us – it isn’t right,” he said.
The state of Idaho argues its abortion bans are clear.
But plaintiffs said doctors, facing uncertainty and potential prosecution, are directing patients out of state. Women in this case sought treatment for non-viable pregnancies in Oregon and Washington.
The trial continues next week.
Trial Day 4: End of plaintiffs’ testimonies
On Tuesday, Nov. 20, the court met for the fourth day of the plaintiffs’ testimony. They brought reproductive medicine historian Dr. Shannon Withycombe to the stand. She testified that in 19th century America, whenever physicians were faced with choosing between the life of a pregnant woman or the life of a fetus, they chose to save the woman.
“In 1889, when the Idaho State Constitution was ratified,” Withycombe said. “It was widely understood in America that abortion was a legitimate medical practice, and that physicians had full discretion over when they thought it was necessary to preserve the life or health or future fertility of a woman.”
The plaintiffs also brought in Dr. Jennifer Payne, a reproductive psychiatrist and professor at the University of Virginia.
“Pregnancy can trigger or worsen or initiate a significant psychiatric disorder in susceptible women, and those women should not be excluded from abortion care,” she said.
She noted women presenting to an emergency room in severe mental health distress are not provided an abortion and are treated for their psychiatric symptoms.
Payne also said some patients’ have conditions that require them to take medicine affecting fetal development. She said the language of the abortion bans is unclear and narrow, excluding women with certain psychiatric conditions from receiving abortion care.
“That particular fact will lead to increased mortality and morbidity for women who are pregnant with psychiatric conditions in Idaho,” she said.
In opening statements last week, the state said the law was clear and Idaho had a vested interest in persevering the life of unborn children. The first four days have focused on the plaintiffs’ case and testimonies.
Trial proceedings continue Wednesday. The plaintiffs are expected to rest their case this morning, followed by arguments from the state attorney general’s office on behalf of Idaho.
