Idaho's abortion ban is so vague even the judge says he can't understand it
Since Idaho’s abortion bans took effect almost four years ago, an Idaho doctor says he’s had to send patients out of state for medically necessary abortions for a range of pregnancy complications under which he used to be able to provide abortions.
Dr. Stacy Seyb, who treats high-risk pregnancies as a maternal fetal medicine specialist, answered questions under oath on the first trial day of his federal lawsuit seeking medical exceptions to Idaho’s near-total abortion ban. The lawsuit is one of several that have challenged Idaho’s abortion ban.
Idaho has several abortion ban laws that, if violated, could allow doctors to be prosecuted and lose their medical licenses, as well as allow them to be sued for at least $20,000 by family members of a person who obtained an abortion. Idaho’s law allows abortions that are needed to prevent the death of the mother, but not to protect her health. Seyb’s lawsuit seeks medical exemptions that would allow abortion to prevent permanent health declines, death by suicide and fatal fetal conditions.
Despite calls for change, including by the state’s top medical association, Idaho lawmakers have largely refused to modify Idaho’s strict abortion laws. After the state’s abortion bans took effect, Idaho lost more than a third of its obstetrician doctors, a study found last year. A group behind a proposed ballot initiative to end Idaho’s ban is awaiting confirmation from election officials on whether it will qualify for the November ballot.
Under questioning from his attorney, Seyb said he and other doctors are unsure about when abortions are allowed under Idaho’s laws — and that he refers patients out of state for conditions under which he used to provide abortions.
“It’s been very, very difficult trying to figure out what types of procedures … would not put you in harm’s way,” Seyb said at the trial in federal court.
Labrador says U.S. Supreme Court made clear ‘that there is no right to abortion in the U.S. Constitution’
Seyb’s lawsuit is against Ada County Prosecutor Jan Bennetts and the Idaho Board of Medicine, which licenses doctors. Neither side presented opening arguments at the first day of the trial, instead diving directly into questioning doctors who served as witnesses.
Last week, Idaho Attorney General Raúl Labrador told the Idaho Capital Sun that the U.S. Supreme Court, in overturning Roe v. Wade, made clear “that there is no right to abortion in the U.S. Constitution, and that states have the right to decide abortion policy.”
“This applies to all manner of abortions, including abortions that are done for a claimed medical reason,” he said in a written statement. “In short, abortion, regardless of the reason for the abortion, is not deeply rooted in this Nation’s history and tradition and is therefore not implicit in the concept of ordered liberty. Since there is no fundamental right to abortion, Dr. Seyb is unable to show that Idaho’s laws protecting the lives of unborn children are unconstitutional.”
There is no jury in the trial, which is led by federal judge B. Lynn Winmill. It is set to continue until Monday, June 15.
Doctor lists medical conditions that he has to refer for out of state abortions
Labrador, the attorney for state officials and agencies, watched as one of his attorneys questioned Seyb and other doctors about their testimony. At several points, Labrador’s attorney, Jim Craig, sought to undermine Seyb’s case.
Through Craig’s series of questions, Seyb acknowledged that he has not been criminally charged for providing an unlawful abortion, or been told he’s being investigated by the Idaho Board of Medicine.
Craig repeatedly tried to get Seyb to admit he didn’t take time to understand how an Idaho court interpreted Idaho’s abortion ban as not requiring women face an “imminent” death risk to be allowed to lawfully receive abortions in Idaho.
But Seyb seemed skeptical of that assurance.
“I think there’s still a lot of controversy around those things,” he replied.
Under questioning from his attorney, Seyb said he hasn’t seen guidance from Labrador, the Ada County Prosecutor’s Office and the Board of Medicine on how the state’s abortion bans work.
Labrador’s office attempted to get the lawsuit dismissed before trial, claiming that Seyb didn’t understand how Idaho’s abortion law works. But in a ruling rejecting that request, Winmill wrote that “the contours of the life-of-the mother exception remain ambiguous” even to him.
Seyb’s attorney questioned him on a list of medical problems — like preeclampsia, kidney disease and placental abnormalities — that in the past had prompted Seyb to perform medically indicated abortions in Idaho, that he now refers or feels he would need to refer patients to doctors in neighboring states for. Oftentimes, he said he’d send patients to Utah. The state, which borders Idaho, has a less strict abortion ban, because its near-total ban is temporarily blocked in court.
Doctors discuss how mental health fits into abortion
His lawsuit also seeks to allow abortions in cases where the mother may die by suicide.
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Dr. Marcela Smid, a maternal fetal medicine specialist from Utah, said that treatments for some mental health conditions, such as bipolar disorder, are linked with birth defects. That, she said, pushes some pregnant women on those medications to risk destabilizing their mental health by quitting the medications. In an article she wrote, which was referenced in the hearing, she said suicide is less common during pregnancy than other times in someone’s life, but more common directly after pregnancy in the postpartum period.
Seyb discussed one of his patients who had severe bipolar disorder. She did well during pregnancy, he said, but died by suicide during the postpartum period.
Smid noted that mental health conditions appear to be the most frequent contributing factor to maternal deaths in Idaho, citing years of reports by the state’s panel that studies maternal deaths.
But she also suggested that Idaho is tracking suicide in pregnant women and recent mothers in odd ways. She pointed to a shift by the panel, called the Maternal Mortality Review Committee, in recent years to stop counting mothers’ suicides as related to the pregnancy if they previously had reported thinking about suicide or attempting suicide before they were pregnant.