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 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.
Some pregnancy complications may cause severe or debilitating health risks that require medical intervention (including terminating a pregnancy), and hospitals that accept federal Medicare are required to provide "necessary stabilizing treatment" in their emergency rooms.
"Federal law is clear: Patients have the right to stabilizing hospital emergency room care no matter where they live," said Department of Health and Human Services Secretary Xavier Becerra, when announcing the lawsuit in August. "Women should not have to be near death to get care."
Meanwhile, Idaho state Sen. Scott Herndon, a Sagle Republican, has introduced a bill to change the definition of criminal abortion to address physician concerns about being able to treat things like ectopic pregnancies — when an egg is fertilized outside of the uterus — and miscarriages.
The new definition would state that abortion means to "intentionally kill a living embryo or fetus" and "shall not include the unintentional death of any human embryo or fetus or conduct that occurs after the natural death" of the fetus or embryo in the uterus.
However, the new definition not only introduces words associated with murder — changing language about terminating a pregnancy to "intentionally kill" — it also doesn't allow for a wide range of instances when a doctor may need to end a pregnancy, says Dr. Amelia Huntsberger, an obstetrician who has practiced in the Sandpoint area for about a decade.
For example, while the language "in utero" was intended to allow treatment of ectopic pregnancies, it doesn't take into account that an embryo can implant in a cesarean section scar, which is partially attached to the uterus, Huntsberger says.
"This highlights the problem of people who are not medical experts making laws about medicine," Huntsberger says. "Instead of just providing the care that we've trained for years to know how to do, we're thinking about our personal liability. Am I going to spend time in jail for this? Am I going to be a felon for trying to save this woman's life?"
Huntsberger says pregnancy decisions should be left to patients and their doctors, and remain private. The new laws restricting abortion have led her to question whether she and her family should move out of Idaho, which she says is sad because they consider the Inland Northwest their home.
"In Idaho we have forced birth," Huntsberger says. "There's a certain irony that we value freedom and liberty, and yet people with a uterus don't have the ability to have autonomy over their own bodies."
"This highlights the problem of people who are not medical experts making laws about medicine."
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WASHINGTON SAYS WHOA THERE
In Washington, meanwhile, Democratic lawmakers are pushing to further enshrine protections for abortion.
Since Idaho's Supreme Court also upheld the state's law that allows relatives of an aborted fetus to seek $20,000 in civil fines from the provider, some in Washington are working to limit participation in out-of-state prosecutions or court cases. It's not clear yet if states like Idaho will go after Washington providers for care provided to Idaho residents, but the threat concerns health care workers and lawmakers.
Washington Senate Bill 5489 would prohibit another state from receiving information related to abortion or gender-affirming care if sought via subpoena (think everything from cellphone records to depositions), and would restrict warrants and extradition requests based on receiving or providing that protected health care.
The Washington Association of Sheriffs and Police Chiefs took issue with the bill, with lobbyist James McMahan asking lawmakers not to put officers in the middle of the abortion debate. He noted that anyone arrested on an extradition warrant would go to court first, and wouldn't be transported to another state without agreeing to do so, or being ordered to.
"Law enforcement officers in all states honor judicial warrants from other states," McMahan told lawmakers in January when asking them to oppose the bill.
Even if that shield law passes, some Washington reproductive health care providers are now worried about even traveling to other states.
Dr. Anuj Khattar, a family medicine physician who works with Cedar River Clinics (which has locations in Renton, Tacoma and Yakima), has held medical licenses in multiple Southern states, where he used to provide reproductive health care and abortion before it was banned. Now, he wonders, could he be arrested if he visits friends there?
"I'm asking them to come visit me instead, or meet somewhere else where abortion isn't necessarily something that is criminalized and my life isn't going to be put on the line for it," Khattar says.
Aside from feeling restricted as to where he can travel, Khattar also worries about what could happen if he treats a patient in Washington from another state. Could he lose his license in a state that's banned abortion due to providing legal care here?
"It's hard to know how extensive those laws stretch if those patients come to me, because I hold medical licenses for those states," says Khattar, who didn't want to name the states for fear of retribution. "There's no legal precedent for a lot of what's occurring."
Cedar River is already seeing patients travel to Washington from those more "hostile states," says Cedar River's spokesperson, Mercedes Sanchez.
"My suspicion is that when the Texas law went into effect, all the surrounding states were getting a huge influx of patients first, and then it would kind of ripple out to other states, and those wait times grew," Sanchez says.
Patients traveling to Washington for care is nothing new. Spokane Valley and Pullman have had the closest Planned Parenthood clinics for those in North Idaho for years, and Kennewick has the closest location to Boise and Southern Idaho. But with clinics receiving even more out-of-state patients — 53 percent of abortion patients seen in 2022 at the Pullman Planned Parenthood clinic came from Idaho — the wait times for in-state patients could be growing as well.
In general, Washington has been very supportive of abortion rights, Sanchez says, but more protective steps are needed, including passage of several bills before the Legislature right now.
"I think there is just a concern that we don't know what this is going to look like when the charges or cases start happening, so it's really just trying to protect everyone," Sanchez says.
Among the other measures Washington lawmakers are considering is a joint resolution that would ask voters to enshrine the right to abortion in the state constitution. While abortion was approved by a vote of the people in 1970, it is not explicitly protected in the Washington Constitution. However, the resolution may not have enough support from Republicans to get the two-thirds majority needed to send the amendment to voters.
House Bill 1340, another protective bill sponsored by Rep. Marcus Riccelli, a Democrat representing Spokane, would prevent health care providers in Washington from losing their medical license if they're disciplined in another state for providing abortion or gender-affirming care.
Ashley Wilson, a nurse practitioner at the Pullman Planned Parenthood clinic who lives in Idaho, spoke in favor of the bill, noting she's thankful it would ensure providers can't be disciplined for providing legal care to patients, regardless of where they're from.
"Currently, providers working in reproductive health are trying to juggle all our normal demands and now also the very real concern that the simple act of doing our jobs might in fact prevent us from being able to continue doing them," Wilson told lawmakers last month. ♦
