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Idaho Abortion Ban Gives More Rights to Rapist’s Family Than the Pregnant Victim

A state law allows the family of a rapist to sue anyone who participated in aborting a fetus generated by the rape.

People demonstrate against the Supreme Court's decision to overturn Roe v. Wade in Boise, Idaho, on July 20, 2022.

Last week in Idaho, a near total ban on abortions kicked in. Similar bans took effect in Texas and Tennessee.

Idaho is the westernmost state to embrace the extremist bans that now characterize much of the South and Midwest U.S. Its ban, based on a trigger law passed a couple years back and intended to kick in as soon as Roe was overturned, allows for exceptions only in the cases of rape, incest or medical emergencies. But the penalties it imposes on doctors who perform abortion — five years in prison — are so severe that it’s hard to see how more than a handful will be willing to take the chance. Its language was so vague that the Justice Department ended up suing the state, arguing it would prevent people from receiving abortions even when their lives were at risk. On August 24, a judge blocked the provider-punishment part of the law from taking effect.

Another law, which the courts have let stand in Idaho, allows the “relatives” of an aborted fetus to sue abortion providers for up to $20,000. While it doesn’t allow rapists to sue, its language, supported by 51 out of 65 representatives in the statehouse, is broad enough that it would allow the families of the rapist to sue anyone who participated in aborting the fetus generated by the rape. If one were deliberately trying to craft a law offensive to every concept of an individual’s dignity, one couldn’t do better than this heinous piece of legislation, which gives the families of rapists more control over the reproductive rights of the victim than has the victim themself.

At the same time, the Idaho state legislature has repeatedly shot down laws making it easier to access contraception. And, because of the vastness of rural Idaho’s terrain, in many parts of the state residents are at least a five-hour drive from abortion clinics in nearby states such as Oregon.

Idaho, which had a long and radical history of union organizing in the late 19th and early 20th centuries, has, in recent decades, been remade as a cauldron of far right, know-nothing politics. Its large wilderness expanses have played home to a range of white supremacist and militia organizations, including the Aryan Nations in the early 1990s, and a number of its political leaders have made names for themselves by espousing evermore hard-right ideologies. In fact, current Lt. Gov. Janice McGeachin was a featured speaker at a white nationalist event earlier this year. Far right icon Ammon Bundy lives in Idaho. At least one member of the state legislature is a member of the Oath Keepers, and state officials such as McGeachin have an established rapport with various militia groups. And a growing number of Idaho realtors aim their advertisements at conservatives from blue states and cities looking to relocate to a reliably right-wing part of the country.

Yet, the abortion ban could scramble state politics in unpredictable ways. Although the number of abortions in the state has dropped significantly since it peaked in the early 1980s, it still is a procedure that, until the bans kicked in, was relatively common.

Three years ago, polling showed that 65 percent of Idahoans supported access to all forms of reproductive care, including abortion. However, when abortion itself was the central focus of polling, the state’s populace responded in a more conservative manner. Recent New York Times polling found that only 43 percent of Idahoans wanted to keep abortion legal, while 50 percent wanted it to be mostly illegal.

True, that means more Idahoans are opposed to abortion than want to keep it legal, but it’s hardly the overwhelming mandate one might expect in a state where only 14 percent of registered voters are registered as Democrats and where Donald Trump got nearly 64 percent of the vote in 2020.

And it’s in these numbers that political calculi get scrambled.

Since the Supreme Court’s Dobbs decision overturning the right to abortion in the U.S., women have been registering to vote at far higher rates than have men. Sixty percent of women of child-bearing age tell pollsters that, in the wake of abortion access being limited, they are now more motivated to vote in the midterms.

In Idaho, 55 percent of newly registered voters this summer have been women. That’s high, but not as high as in Kansas, where 7 out of 10 newly registered voters are women — which likely had something to do with the huge majority that abortion rights advocates secured in the state’s election on whether or not the procedure should remain legal.

Kansas’s demographic isn’t that different from Idaho’s; it is disproportionately white and religiously conservative, and it has far more registered Republicans than Democrats. Buried deep beneath its Republican veneer, it also has a long history of radical and progressive politics, dating back to the 19th century. In Kansas, reliably red counties, including some ultra-conservative rural ones, voted to retain abortion access. And it’s certainly possible that, if abortion were put to the vote in Idaho, with women flexing their political muscle and registering to vote in high numbers, similar surprises could unfold. It’s also possible that, with voter turnout likely to be higher in November than in many recent midterms (as evidenced by a high primaries turnout earlier this year), and with the issue of abortion driving many voters to the polls, more moderate voices will start to gain electoral traction in Idaho.

In the meantime, though, abortion providers are scrambling to set up shop as close to the Idaho state line as possible, especially in Oregon and Washington. That won’t undo the damage caused by Idaho’s battery of cruel laws now banning abortion and restricting rights, but it will at least allow some options in the face of draconian judicial and governmental overreach into how people live their lives.

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