Could Idaho amend abortion law through ballot?

After Roe v. Wade fell, many states, including Idaho, enacted strict rules or outright bans on abortion. Recently, though, voters in several states, including red states, have amended or changed those laws through ballot initiatives.

For example, voters in Kansas and Kentucky last year rejected measures that would have removed the right to abortion or said there is no state right to abortion. In Ohio last month, voters approved an initiative that will amend the state’s constitution to give people the right to make their own decisions on abortion.

Ohio’s referendum was the first time voters in a conservative state were asked to establish the right to abortion instead of voting to preserve the status quo.

But could a ballot initiative work in Idaho to carve out exceptions and add a right to abortion?

“I don’t doubt that somebody’s going to eventually push an initiative,” said Brian Almon, a writer and editor at Gem State Substack, a conservative Idaho political blog. “It seems inevitable that sometime in the next few years, there will be some attempt at that. ... I think it would be an uphill battle for the people who were promoting it.”

He said it would be an uphill battle because he views regulating abortion as something that unites the majority of people on the right in Idaho.

Abortion was legal nationwide in the United States for nearly 50 years until the United States Supreme Court overturned the landmark Roe v. Wade decision in 2022. Since then, several states, including Idaho, have put bans in place.

Idaho has three separate laws that ban the procedure: a six-week “fetal heartbeat” ban; a total ban that made nearly all abortions felonies triggered by the overturning of Roe v. Wade; and a Texas-style civil liability law, which allows family members of a fetus aborted after six weeks to sue the abortion provider for a minimum of $20,000.

But anti-abortion advocates have faced a new dilemma in the months since. For almost 50 years, the anti-abortion movement was united in the goal of overturning Roe v. Wade.

Now people are trying to determine where to draw the line, whether that’s a 12-week ban or a heartbeat bill or fully eliminating abortion.

“I think there’s a bit of an identity crisis in the movement,” Almon said, adding that some level of abortion is popular with many Americans.

He said he likes the direction the GOP platform has moved in. He isn’t sure exactly where the majority of Idahoans fall on abortion, but “we’re going to find out.”

Quantifying support for changes to the law is tricky in Idaho, according to Jeff Lyons, associate professor in Boise State University’s political science department. It’s hard to find polling in Idaho on many issues, he said. And it’s hard to survey about abortion. However, there have been a few data points over the past 10 years.

“I think that’s kind of a big-picture takeaway from a lot of this is the public in Idaho is kind of split,” Lyons said. “However, when you get into the exceptions, and you start listing those specifically, there’s pretty strong majority support.”

Polling company Civiqs’ data shows that 44% of Idahoans believe abortion should be illegal in most cases, but only around 11% of respondents believe it should be illegal in all cases. In recent years, the state’s Republican Party has moved closer to that perspective of the 11%.

The existing platform opposes all abortions with no exceptions. In contrast, the 2000 Idaho GOP platform opposed abortion based on sex selection, convenience and birth control but recognized “many strong and diverse views within our party membership.”

INITIATIVES IN IDAHO

If there was a push to amend or repeal Idaho’s bans, it would have to be done a little differently than other states. In Ohio, voters approved an amendment to the state’s constitution to protect the right to abortion. In Montana, advocates last week submitted a ballot measure that would do the same, the Montana Free Press reported.

In Idaho, voters cannot change the state constitution through the initiative process, former Idaho Attorney General Jim Jones said.

However, an initiative could be proposed that repealed parts of the statute.

“You could say any provision in the code inconsistent with this measure is hereby repealed,” Jones said. “That’s kind of a meat ax approach.”

In other states that currently have bans, initiatives have been proposed to either add exemptions, such as in Missouri, or only make the procedure legal to viability, such as in Nebraska. In South Dakota, there’s a proposal to make abortion legal in the first trimester.

Jones said an initiative in Idaho that targeted multiple statues wouldn’t run afoul of the state’s single-subject rule, in which laws must address only one subject.

“Abortion is a single issue. I don’t think anybody would be successful in trying to use the single-subject rule,” Jones said.

Jones is involved in a group that is trying to get an initiative on the ballot that would create an open top four primary and implement ranked choice voting. Its supporters say the single subject of the proposal is elections. Attorney General Raúl Labrador has said he believes the initiative violates the single-subject rule and that he will challenge it if it makes it to the ballot.

Labrador’s office did not respond to a request for comment on this story.

Initiatives in Idaho have rarely been successful in the past decade, with the notable exception of voters approving Medicaid expansion in 2018. Before that, the last successful initiative was in 2002 to define tribal video gaming machines and provide for amendment of the State-Tribal Gaming Compact providing for their use, according to the Secretary of State’s website.

The group Reclaim Idaho, which successfully passed Medicaid expansion, is now also working on the “Open Primaries Initiative.” Jones said its group is unique because it’s run by volunteers, whereas previous efforts were expensive and done through paid signature collectors.

“It’s a pretty tough road,” Jones said.

ADVOCACY IN IDAHO

It’s unclear if advocates would take that path.

Leaders of Planned Parenthood Alliance Advocates in Idaho and Idaho Chooses Life were unavailable or did not respond to requests for comment for this story by press time. The ACLU of Idaho declined to comment.

Much of the battle over the procedure and how much it should be regulated has taken place in the courts. Planned Parenthood Great Northwest challenged all three of Idaho’s bans, and the state Supreme Court upheld them in a 3-2 decision issued in January.

In September, two doctors, the Idaho Academy of Family Physicians, and a group of four Idaho women denied abortions in emergency situations or facing fatal fetal diagnoses challenged the law’s lack of exemptions.

Other efforts to amend the laws have taken place in the Statehouse.

Caitlin Gustafson, a family medicine physician in McCall and executive board member of Idaho Coalition for Safe Healthcare, said the situation for Idaho medical providers and patients is urgent but indicated the goal is to work with the Legislature to seek “immediate relief.”

Afterwards, she said “we will continue to be reassessing the situation” in regards to next steps.

She said Idaho’s laws have created a “quagmire” for providers — stuck between the law and what is good medical care. Many high-risk obstetricians have left, Gustafson said.

Last year, the Legislature passed HB 374 which provided some definitions of abortion under the law and created exceptions to the abortion law, rather than affirmative defenses.

Those definitions state that removing a dead fetus, an ectopic or molar pregnancy or treating someone who is no longer pregnant are not considered abortions.

It changed cases of rape and incest with police reports to true exemptions, rather than an affirmative defense for doctors who could be prosecuted under the law. The bill also limited the rape and incest exemptions to the first trimester of pregnancy.

However, Gustafson said more is needed for doctors to feel confident in providing care for their patients without fearing a prison sentence. For example, she mentioned a comprehensive exception for health of the mother.

“Given the urgency and impact on people’s lives, we are seeking legislative correction this session,” Gustafson said. “Future actions will depend on those outcomes.”

Carolyn Komatsoulis covers Boise, Meridian and Ada County for the Idaho Press. Laura Guido is the Statehouse reporter and covers Idaho politics for the Press and the Tribune.