Idaho Supreme Court approves state officials’ re-drafted abortion ballot initiative language

The Idaho Supreme Court ruled Sunday that revised explanations of the effects of voting for or against a proposed abortion rights initiative may appear on the November general election ballot. 

The 4-1 opinion came after the court previously ruled on Friday that drafted statements by Idaho Attorney General Raúl Labrador and Secretary of State Phil McGrane did not comply with a state law requiring a clear and concise statement of the effects of “yes” and “no” votes.

The proposed initiative, drafted by the group Idahoans United for Women and Families, would repeal Idaho’s abortion ban, allowing abortions up to fetal viability or beyond in cases of a medical emergency. It would also enumerate rights related to reproductive healthcare, such as access to contraception and IVF, and privacy in healthcare decisions, and provide liability protections for physicians providing reproductive healthcare.

Under Idaho’s abortion laws, it is a felony to perform nearly any abortion, except to prevent the death of the mother, or in cases of rape and incest in the first trimester with a police report. Doctors may also be sued for a minimum of $20,000 for performing an abortion.

The new statements, submitted to the court Saturday, are: 

“A YES vote would support creating a right to abortion before fetal viability— defined as a fetus’ ability to survive without extraordinary medical measures—and after fetal viability in cases of medical emergency; providing protections against professional discipline and civil and criminal liability for healthcare providers; and codifying a statutory reproductive right to freedom and privacy.

A NO vote would support making no change to Idaho’s current law, which

preserves the life of preborn children by prohibiting abortion, except when necessary to prevent the death of the pregnant woman, and during the first trimester in documented cases of rape or incest reported to law enforcement.”

Supporters of the initiative, called Prop 1, argued the re-drafted statements misrepresented Idaho’s abortion ban and asked the court to reject them. The supporters noted that the “no” statement failed to mention Idaho’s abortion ban carries felony penalties and prison time for doctors who perform abortions. 

“By omitting the felony prohibition while highlighting exceptions, Respondents continue to present an incomplete and misleading picture of the law that a ‘no’ vote would preserve,” attorneys with Holland & Hart and Haws Law, LLC wrote in court filings. 

The state Supreme Court overruled the objection.

Justice Colleen Zahn dissented from the majority opinion, arguing the “no” statements didn’t comply because of its use of the term “preborn children,” which isn’t found in Idaho’s laws related to the legality of abortion nor the definition of abortion, she said. She also wrote that the statement didn’t clearly inform voters of the penalties under Idaho’s existing abortion bans. 

Idahoans will have the chance to vote on Prop 1 during the Nov. 3 general election.