Hi, everyone! Kate Smith here, senior director of news with Planned Parenthood Federation of America.
Thanks for coming back for the sixth installment of “Planned Parenthood Presents: The State of Abortion.” This week, we’re continuing to document the impact of the Supreme Court overturning Roe v. Wade with on-the-ground reports of the latest state laws and legal fights. We’re here to keep you informed so you can decide for yourself.
As of this week, it’s officially been two months since the Supreme Court overturned Roe v. Wade, a decision that took away the constitutional right to abortion and allowed states to ban abortion. And as we’ve seen, many have.
As of today, 16 states have abortion bans in place. While the total number of states with abortion bans in place was unchanged this week, the severity of some of those bans significantly increased, including Idaho.
Because of Idaho’s ban, Oregon is expected to see a jump in out-of-state patients. And that’s something the state is prepared to handle. In 2017, lawmakers passed the state’s Reproductive Health Equity Act, which both protects the right to abortion and ensures access.
Oregon Gov. Kate Brown championed that legislation. A lifelong abortion rights supporter and former clinic escort, Brown told us her state’s laws protect not just Oregonians, but patients in neighboring states seeking care as well.
“Our folks across the state are confused, they're concerned, they're anxious and they're afraid,” Governor Brown said in an interview with Planned Parenthood. “And that's here in Oregon where we have access. And so I can't imagine what's happening in other states like Idaho.”
In addition to the Reproductive Health Equity Act, earlier this year Oregon lawmakers also seeded the Reproductive Access Fund, a $15 million pool of money aimed to help both Oregonians and out-of-state patients who seek abortion services.
In our conversation, Gov. Brown also told us that her office has the discretion to refuse to extradite people who have sought abortion care in Oregon in certain circumstances, and is looking at options for strengthening her authority.
Since the fall of Roe, Gov. Brown said she’s worked with other governors to both secure abortion access in their own states and also support patients in neighboring states where access has been cut off. Brown said she’s also met with Department of Health and Human Services Secretary Xavier Becerra, Jen Klein of the Gender Policy Council, and even President Biden to share ideas on how the federal government can safeguard access.
Brown said that level of coordination between states and offices is unique.
“With the president's commitment to ensuring access to this fundamental right, and his administration, you can really see that commitment is a game changer,” Brown said. “And so for all of us to work together truly is a paradigm shift.”
On Thursday, Idaho replaced the six-week ban we told you about last week with a new near-total ban, prohibiting abortion after pregnancy is “clinically diagnosable,” according to the law.
Lawmakers in the state that support the law would say the ban has exceptions, but it’s not that simple. In fact, if you read the law’s language, you’ll notice the word “exception” doesn’t appear at all.
That’s because Idaho’s abortion ban uses something called an “affirmative defense.”
Here’s how that works:
Under the new law, providing an abortion in Idaho for any reason at all is illegal. Full stop.
However, the legislation spells out that the doctor can defend themselves if they can prove that the abortion was necessary to “prevent the death of the patient.”
Think about it this way: Doctors in Idaho could face felony charges for providing lifesaving health care to patients. Period. They’ll have the opportunity to defend themselves, but as they’re facing a patient’s medical emergency, they’ll need to weigh best medical practices with whether they can win a lawsuit using that defense in a prosecution.
That exception mechanism, specifically as it applies to life-saving care, is part of the Biden administration’s lawsuit against Idaho, which says the law conflicts with the federal requirement for a hospital emergency department to provide care when a pregnant person faces a medical emergency.
On Wednesday evening, a federal judge agreed. Siding with the Department of Justice, U.S. District Judge B. Lynn Winmill blocked Idaho from prosecuting any doctor at those hospitals who performs an abortion in an emergency situation.
However, the rest of Idaho’s abortion ban did go into effect on Thursday, including its “exception” for abortions performed when the pregnancy was a result of rape. Just like with the life-saving “exception” that was blocked, the rape and incest “exception” is really just an affirmative defense. Meaning it’s still illegal to provide an abortion for any reason under Idaho’s statute, but if the pregnancy was a result of rape or incest, a doctor could face felony changes and have the opportunity to defend themselves during a prosecution.
And it’s worth noting that the defense only applies if the patient reports the rape to law enforcement and shares that report with their provider. And we know that reporting sexual violence comes with its own set of problems. According to the Department of Justice, nearly 80% of rapes and sexual assaults go unreported.
In addition to Idaho, Tennessee began also began prohibiting abortion at all stages of pregnancy, marking an even stricter law than its previous ban at six weeks of pregnancy.
Tennessee lawmakers say the ban has exceptions for situations for life-saving care, but just like in Idaho, those so-called exception are really just affirmative defenses. Meaning that like in Idaho, abortion for any reason is prohibited and doctors could face felony charges for providing life-saving health care to patients.
In Texas, abortion will remain banned at all stages of pregnancy, criminal penalties for physicians who violate the law increased. Now, the ban carries a first- or second-degree felony charge for providers who violate the law, with punishment up to life in prison.
Looking to next week, we’re expecting the South Carolina state legislature to continue debating its own near total abortion ban.
On Monday, the full state House is expected to vote on legislation that would ban abortion at all stages of pregnancy. If it passes, the legislation will head to the Senate the week of Sept. 6, 2022.