THE BORDERLANDS

With starkly different abortion laws in Idaho and Washington, and legislators in both states working to enshrine them, providers and patients face legal uncertainty

When the U.S. Supreme Court overturned Roe v. Wade last year, nearly all abortion in Idaho was outlawed, due to a trigger ban recently passed by Republican legislators. Just across the border in Washington, where abortion was legalized before the landmark 1973 decision, access remains legal.

The starkly different abortion laws have set up a dangerous and murky situation for the interconnected communities of the Inland Northwest, where people live and work across two states. While access was already limited in North Idaho before the Dobbs decision overturned Roe, a slew of health care options may now be even harder to get as providers on either side of the border worry about the legal consequences.

What happens, for example, if someone works at a clinic in Pullman where more than half of the abortion patients last year were from Idaho — a state where providing abortion is now a felony? And if that provider also lives just miles away in Idaho, could they be arrested under that state’s strict laws for work they performed legally in Washington?

What if a doctor in Sandpoint has a patient experiencing a partial miscarriage that needs to be surgically

BY SAMANTHA WOHLFEIL

removed? A procedure they did without hesitation before now may threaten their livelihood.

Lawmakers in both states are working to address the legal uncertainties. In Washington, some are pushing for more protections to ensure that the abortion policies of another state won’t impact care. Meanwhile, in Idaho, others want to change the definition of abortion in hopes of clarifying when doctors can terminate pregnancies without the threat of prosecution.

With each state pulling in opposite directions, patients and doctors in the Inland Northwest will be among the first to test the legal conflicts and ramifications.

Idaho Says No

In early January, Idaho’s Supreme Court upheld the state’s ban on abortions at all stages of pregnancy. Under the ban, providers found guilty of “criminal abortion” would face no less than two years in prison, and anyone involved in helping with the procedure could lose their medical license for six months or, for a second offense, permanently. The court also upheld abortion laws that would, among other things, allow people to sue abortion providers for thousands of dollars.

While some describe the overall ban as having “exceptions,” the law in fact offers only “affirmative defenses” that health care providers could give in court to have their charges dismissed — defenses useful only after they’ve already been arrested, jailed and charged with a felony.

“An exception means, ‘We can’t charge you.’ An affirmative defense means you have to go to court, hire a lawyer, and then raise this defense,” says Wendy Heipt, the senior reproductive rights lawyer for Legal Voice, a nonprofit that advocates for women and LGBTQ people in the Pacific Northwest. “We don’t want [doctors] to worry about the law, we want them treating patients.”

The defenses include if the abortion was provided in the case of rape or incest (only for those reported to police), or when the life of the mother was at stake.

A U.S. Department of Justice lawsuit that’s still underway could block part of the ban. Specifically, the DOJ takes issue with the focus on preventing the death of the mother, because Idaho doesn’t also offer a defense for protecting her health