Lawsuit over Idaho’s restrictive abortion ban is about a woman’s right to medical care

·5 min read

Idaho is the first state to be sued by the federal government for a trigger law banning abortion after six weeks. The law bans abortions, even for the health of the mother.

This case will be the Scopes Monkey Trial for the 21st century, and Idaho taxpayers will foot the bill. It is the seed case in a gigantic battle over human rights that will define this period in our history.

Greg Hampikian
Greg Hampikian

Specifically, will we defend the right of a woman to get needed medical care. It’s hard to imagine a more basic freedom. I realize that my pro-life friends believe that they are sticking up for unborn humans. But while I share their passion for life, I do not have any problem balancing the developing fetal life against the life and health decisions of a pregnant woman concerning her own insides.

I could complain about the lack of national legislation on this issue, but we are stuck with what we have: a possible stalemate.

If the Supreme Court opposes the executive branch, and the president believes a fundamental constitutional right is at risk, we are heading for the oft-promised constitutional crisis. That’s because our lawmakers sign an oath to the Constitution, the rulebook of our democracy. In that way, every official is their own judge. It took 50 years of hard, dedicated work to overturn Roe. Will it take another 50 years for the pendulum to swing back? No, not if the voters push it, like they did in Kansas.

Now that voters are seeing exactly how far the right will take abortion restrictions, they may finally rise up to reflect the national surveys that favor reasonable access to reproductive health, something more than the six weeks Idaho law permits for the health of the mother.

But the activist opponents of abortion see this is as a moral and/or religious issue, and that makes them resistant to compromise. It is logical for those who believe that abortion is the full equivalent of murder to want to see it prosecuted as such. After all, other absolute moral issues are not open to compromise: racial equality under the law, for example, or the end of slavery.

But there is a difference between those struggles and the one to come over the Idaho law. Because in this case we have the competing interests of two very different forms of life. The right of a sentient woman to protect her own health and safety and the assumed interests of the fetus to demand her sacrifice.

We must make it clear that the government, no matter how noble its intentions, cannot force a citizen to surrender their body’s interior — even to save their own child. No parent can be forced to donate a kidney. One may believe that kidney donation is the proper moral choice, but in America even prisoners are not forced to donate their organs to the state.

Imagine what will happen when Idaho only allows abortion for the “life of the mother” after six weeks and places the burden of proof on doctors at trial.

This very point was made during the original Supreme Court oral argument in the Roe case. Doctors who want to follow the law will be required to wait until the mother’s death is nearly assured, before rendering help. Doctors will be forced to time their assistance not to reduce the mother’s risk, but to increase risk until she is almost certain to die. Disobeying the Idaho law carries a five-year prison sentence and the loss of your medical license.

I agree that there is an important moral question concerning some sort of protection for fetuses. But the state interest in protecting fetuses does not make them superior or even equivalent to a sentient woman.

Even Jewish religious law, the first derived from the Bible, does not hold the pregnant woman and the fetus as equals. And if we are so concerned about fetal health and safety, surely we could find some poor pregnant women who want our help. No one would be morally opposed to such dedication to the unborn. But when we balance this passion for the unborn against the established rights of a free American woman to make decisions about her body, I think the voters will push the pendulum back.

Finally, a word about the six-week limit. I think the country might find agreement on a 10-12-week period, but only if young women have welcoming, safe and convenient access to abortion.

If we are scaring young girls about abortion, humiliating them for their choice, then we cannot expect them to act quickly in a time of crisis. Education and easy access to birth control are obvious ways to help women avoid abortion.

Instead of facilitating early abortions, the Idaho law is strangely punitive, allowing bounty-like lawsuits to anyone “affected.” The $20,000 plus fees and legal expense that each person receives, includes the family members of rapists, who suffer the loss of their rapist relative’s fetus. And while a scared pregnant teen has six weeks to complete an abortion, the brother of a rapist has four years to collect his money.

But if those of us who believe in protecting women adopt the Christian right’s single-issue voting strategy, then the people will secure reproductive rights in short order, and we can move on to other pressing matters.

Greg Hampikian, Ph.D., is a resident of Boise.