Hypothetical situations or real-life medical tragedies? A judge weighs an Idaho abortion ban lawsuit

BOISE, Idaho — An attorney for Idaho asked a judge on Thursday to throw out a lawsuit seeking clarity about the medical exemptions to the state's broad abortion bans, saying it was based on hypothetical situations rather than current facts.

But an attorney for the four women and several physicians who sued says their claims aren't hypothetical at all, but real-life tragedies happening in doctors' offices and homes across the state.

Similar lawsuits are playing out around the nation, with some of them, like Idaho's, brought by the Center for Reproductive Rights on behalf of doctors and pregnant people who were denied access to abortions while facing serious pregnancy complications.

“The physicians go to work every day not knowing if they will be able to provide the necessary care to their patients,” Marc Hearron, an attorney for the Center for Reproductive Rights, told 4th District Judge Jason Scott.

The women and doctors suing aren't asking the court to recognize a right to abortion in the state constitution, Hearron said. Instead, they want the judge to find that pregnant people are entitled to the fundamental rights that are specifically listed in the Idaho Constitution — including the right to enjoy and defend their own life and the right to secure their own safety.

James Craig, a division chief with the Idaho Attorney General's office, told the judge that the Idaho Supreme Court has already upheld the state's abortion bans. That should make the ruling in this case easy, Craig said, urging the judge to dismiss the lawsuit.

The four women named in the case were all denied abortions in Idaho after learning they were pregnant with fetuses that were unlikely to go to term or survive birth, and that the pregnancies also put them at risk of serious medical complications. All four traveled to Oregon or Washington for the procedures.

Craig suggested that since they were no longer facing the pregnancy complications, they should be challenging the state's law in the Legislature, not the courts. The possibility of similar problems happening again is hypothetical, he said, and hypothetical situations don't meet the legal standard needed for this kind of lawsuit.

“They're representing hypothetical fact — hypothetical future scenarios — and asking the court to rule,” Craig said. “In that respect, no, they don't have the right to a declaratory judgement.”

The judge said he would likely rule on the motion to dismiss next month.

Jennifer Adkins, one of the plaintiffs, said afterward it was infuriating to be dismissed as a “hypothetical.”

"It’s easier for them to pretend that we don’t exist, to ignore the trauma and tragedy that we have been through as a family,” she said of the state's attorneys and officials.

The hypothetical became real for Adkins in April. She and her husband John were thrilled to welcome a second baby when she found out she was pregnant just after Valentine's Day. But during a routine 12-week ultrasound, their joy came crashing down. Their baby had a rare condition called Turner syndrome, making survival until birth highly unlikely.

Adkins' doctors also told her the pregnancy put her at risk of developing mirror syndrome, a rare and potentially life-threatening obstetric disorder.

“I remember thinking, ‘The other shoe has dropped. Here we are, and it’s happening to me of all people,'" Adkins said.

The couple decided an abortion was necessary to protect Adkins' health and their family. The next several days were spent securing an appointment in Portland, Oregon, and trying to figure out how to cover the cost of flights, a hotel and the procedure itself — knowing covering the full price tag would mean they couldn't pay their mortgage.

“I'm a sixth generation Idahoan. I want to stay here," said her husband John Adkins. “But it makes you question whether or not the state will allow you to, because we had to flee in order to be safe. When we left for Oregon, we felt like we were criminals.”

Adkins and the other three women suing the state have become the public faces of what some medical professionals say is an increasingly common tragedy in Idaho: Patients with high-risk pregnancies and fetuses that are dying or severely ill, forced to choose between carrying to term or leaving the state for an abortion.

“We find joy every day in raising our son, but we still have this tragedy in our family and this loss of a baby that we really wanted,” she said. “We should be preparing to have Christmas with our newborn baby right now, and we're not.”

John Adkins is angry at the lawmakers and state leaders who passed the abortion bans, and said he believes they all knew the laws were putting some families at risk.

“We are casualties that they're comfortable with,” he said. “To allow them to have this fig leaf of hypotheticals and all that nonsense? They know what they're doing.”

Lawmakers passed one of the abortion bans as a trigger law in March of 2020, when most of the physicians in the state were focused on the pandemic that had just begun sweeping through Idaho. At the time, any suggestion that the ban could harm pregnant people was quickly brushed off by the bill's sponsor, Republican Sen. Todd Lakey, who said during one debate that the health of the mother "weighs less, yes, than the life of the child."

The trigger ban took effect in 2022 shortly after the U.S. Supreme Court overturned Roe v. Wade. Since then, Idaho's roster of obstetricians and other pregnancy-related specialists has been shrinking.

Of the nine maternal fetal medicine specialists practicing in Idaho before the bans, four have already left the state and another intends to retire at the end of 2023, according to the lawsuit. Two rural Idaho hospitals have closed their labor-and-delivery centers, with one directly attributing the closure to physicians' resignations over Idaho's restrictive abortion bans.

“The health care system is being quite disrupted,” said Dr. Julie Lyons, a family physician and one of the doctors bringing the lawsuit. “It happens in my clinic, where there is fear among the nurses I work with about treating an ectopic pregnancy even though treating an ectopic is legal. But nobody believes that."

Now it takes longer for patients to get treated, Lyons said, and medical costs are increasing because everyone is worried about being prosecuted.

“We're over-ordering tests, over-ordering ultrasounds to try to protect ourselves," Lyons said. "We don't want to have any possible way that a doctor could be scrutinized and sent to jail.”