AYESHA RASCOE, HOST:
Voters in seven states approved ballot initiatives earlier this month to expand or protect access to abortion. But in more than a dozen states, near-total bans will remain in place for the foreseeable future. One of those states is Idaho, where abortion restrictions are being challenged in court. Arguments began last week in Boise. Sarah Varney with our partner, KFF Health News, has been following the case.
SARAH VARNEY, BYLINE: The law in Idaho - there's actually two abortion bans in Idaho. It is a crime in Idaho to have an abortion except to prevent a pregnant woman's death, or to stave off what's called substantial and irreversible impairment of a major bodily function, or if the pregnancy was a result of rape or incest.
But it doesn't provide any exceptions if the pregnancy threatens a woman's health or her future fertility or if the fetus is non-viable. So the pregnant woman has to carry the fetus to term, which can also pose health risks to the pregnant person, and then there's also the emotional trauma to the parents and the infant. This case was brought by four Idaho women, two physicians and a group of medical professionals.
RASCOE: What was it like in the courtroom? Tell us about the plaintiffs.
VARNEY: The courtroom was really interesting. You know, the four women that are in this case - they all had children before they experienced these pregnancy complications, and they went on to have children after this. So there were young children in the courtroom. Kayla Smith, one of the plaintiffs, had her daughter, Nora, on her lap much of the time.
During Smith's testimony, she sobbed as she was describing her second pregnancy. She told the court that everything had seemed normal up until a routine anatomy scan that showed her son - which she and her husband, James, had named him Brooks - had multiple lethal heart defects. You know, after court, I interviewed Kayla's husband. I asked him about the moment when their physician delivered the final diagnosis.
JAMES SMITH: And I remember finally just asking her if Brooks was going to be able to survive. And Dr. Cooper - she broke down. And the three of us just cried. And I understood that we were helpless in Idaho at that point.
VARNEY: Kayla Smith told me that no fetal surgeon would operate on Brooks.
KAYLA SMITH: My son wasn't going to survive, right? Like, he - we wouldn't bring a baby home. And we also didn't want him to suffer. So we just decided to do the most compassionate thing for him and also for me.
VARNEY: So this is one of these instances where Idaho's law does not allow a physician to let women like Kayla with lethal fetal anomalies to end their pregnancy. They drove with their toddler to Seattle for what's called an induction abortion. So labor was induced at about 20 weeks into her pregnancy, and Kayla and James were able to have some time with Brooks. And they're still, of course, grieving that loss.
RASCOE: How is the state of Idaho defending against this legal challenge?
VARNEY: The state's attorney, James Craig, told the Court that really this is not a question for the courts, that it's up to the state legislature to change Idaho's law.
(SOUNDBITE OF ARCHIVED RECORDING)
JAMES CRAIG: They're asking the court to declare that women have a right to kill their unborn child for no other reason than the fact that the baby is disabled. They're asking the court to declare that women have a right to kill their baby, their unborn child, anytime they have a risk of infection.
VARNEY: Craig repeatedly referred to surgical abortion as barbaric, even as the women in the court room had had these procedures. As the women were describing what happened to their bodies during their pregnancies, you know, oftentimes crying on the stand, Craig repeatedly objected and sometimes drew reprimands from the district judge, Jason Scott.
I spoke to another plaintiff, Jillaine St. Michel. She had a pregnancy in which her fetus developed in truly just disastrous ways. It was lacking leg and arm bones. It had inoperable heart defects. It was missing a bladder. Its kidneys were fused. And they were told, in the state of Idaho, an abortion was not legal, and her case was no exception. She and her husband drove to Seattle for abortion care, she said, to spare the fetus she carried from further torment.
JILLAINE ST MICHEL: The state talks about, you know, how barbaric it is - they keep using that term - how barbaric it is to have a D and E. To me, the idea of allowing your child to experience suffering beyond what is necessary - to me, that feels barbaric. To put myself through that when that is not something I desire - that feels barbaric. To have that ripple down into my ability to parent my existing child - that feels barbaric.
RASCOE: So what happens next?
VARNEY: The trial continues this upcoming week. There'll be more testimony from physicians. The state has only one witness that it plans to call, Dr. Ingrid Skop, who's an anti-abortion physician, an anti-abortion OBGYN, who has testified in other cases similar to this in other states. But whatever the ruling, certainly both sides will appeal.
RASCOE: That was Sarah Varney with our partner, KFF Health News. Thanks for joining us.
VARNEY: Thank you, Ayesha.
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