Medical care at heart of lawsuit against Idaho abortion ban


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Idaho is the first state to be sued by the federal government over a trigger law banning abortion after fetal heartbeat. It is 5-6 weeks after the last menstrual period. The law prohibits abortions, even for the health of the mother.

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

Greg Hampikian.jpg
Greg Hampikian

Specifically, are we going to defend a woman’s right to get the medical care she needs? It is hard to imagine a more fundamental freedom. I realize that my pro-life friends believe they are defending unborn humans. But even though I share their passion for life, I have no problem balancing the development of fetal life with a pregnant woman’s life and health decisions about her own interior.

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 and the President believes that a fundamental constitutional right is threatened, we are headed for the oft-promised constitutional crisis. This is because our legislators sign an oath to the Constitution, the rule book of our democracy. In this way, each official is his own judge. It took 50 years of hard and dedicated work to overthrow Roe. Will we have to wait another 50 years for the pendulum to swing back? No, not if voters push it, like they did in Kansas.

Now that voters see exactly how far the right will push abortion restrictions, they can finally stand up to reflect the national surveys that promote reasonable access to reproductive health, something more than the six weeks Idaho law allows for maternal health.

But militant opponents of abortion see it as a moral and/or religious issue, which makes them resistant to compromise. It makes sense for those who believe that abortion is the complete equivalent of murder to want to see it prosecuted as such. After all, other absolute moral issues are not subject to compromise: racial equality before the law, for example, or an end to slavery.

But there is a difference between these fights and the upcoming one over Idaho law. Because in this case, we have the competing interests of two very different life forms. The right of a sensitive woman to protect her own health and safety and the supposed interests of the fetus to demand its sacrifice.

We must make it clear that the government, no matter how noble its intentions, cannot force a citizen to give up the inside of his body, even to save his own child. No parent can be forced to donate a kidney. You might think kidney donation is the right moral choice, but in America, even prisoners aren’t forced to donate their organs to the state.

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

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

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

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

Finally, a word about the six-week limit. I think the country could work out a 10-12 week deal, but only if young women have welcoming, safe and convenient access to abortion.

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

Instead of facilitating early abortions, Idaho’s law is oddly punitive, allowing bounty-like lawsuits to anyone “affected.” The $20,000 plus costs and legal fees each person receives includes family members of rapists, who suffer the loss of their rapist relative’s fetus. While a scared teenager may have as little as a week of her scheduled period to abort, a rapist’s brother has four years to get his money back.

But if those of us who believe in protecting women adopt the one-question voting strategy of the Christian right, then the people will quickly get reproductive rights and we can move on to other pressing issues.

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

This story was originally published August 14, 2022 04:00.

CORRECTION: This column has been modified to clarify that pregnancy is timed from the last menstrual period.

Corrected August 15, 2022

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