Attorney for Idaho Says Women Endangered by Abortion Ban Are ‘Relying on Hypotheticals’

On Tuesday, an Idaho state court began hearing arguments for Adkins v. State of Idaho, a lawsuit filed by Idaho women and OBGYNs who are challenging the dangerous ambiguity in the state abortion ban’s emergency exception. Four of the plaintiffs—Jennifer Adkins, Jillaine St.Michel, Kayla Smith, and Rebecca Vincen-Brown—experienced extreme, health-endangering pregnancy complications or nonviable pregnancies, but were denied emergency abortion care. They’re represented by the Center for Reproductive Rights.

Idaho enforces a total abortion ban that threatens doctors with five years in prison and only offers a narrow exception to save a pregnant person’s life. But as we’ve seen time and again, these exceptions are too ambiguous to be effective in practice, causing life-threatening delays or denying someone emergency abortion care altogether as doctors weigh the risk of jail time and heavy fines. The plaintiffs in this case were forced to travel out-of-state for care. While on the stand on Tuesday, Adkins called herself a “medical refugee”; she said her Idaho doctor could only provide a paper with a list of out-of-state abortion providers, handed over facedown, and a list of bereavement resources.

But before Adkins testified, during opening arguments on behalf of the state, Jim Craig, an attorney defending Idaho’s abortion ban, made a series of dismissive and dehumanizing arguments against the plaintiffs. Despite their suffering under the state’s laws, Craig accused the women of “relying on hypotheticals” for their lawsuit, citing how they aren’t currently pregnant. “Essentially, they’re saying, ‘Judge, we don’t like the language that’s in the law, so just rewrite the law. Give us something that we like better,'” Craig said. He denied that the women have evidence that the state’s abortion ban endangers pregnant patients’ lives, and cruelly argued that “they’re relying on hypotheticals and speculation as to what might happen to other people.” 

Craig continued to dismiss the plaintiffs’ trauma, comparing their experiences to something as trivial as stepping on a nail: “So, according to the plaintiffs, a pregnant woman who steps on a rusty nail will have an emergent medical condition that poses a risk of death or a risk to that pregnant woman’s health. And according to the plaintiff theory… that woman is entitled to an abortion under Idaho’s law.” He conceded that the plaintiffs “faced tragic circumstances. They faced tragic pregnancies. We do not deny that no one would want to have to face those circumstances, but they are not here before this court asking for relief related to those pregnancies.” But, he maintained, their horrific experiences don’t give them a right to ask for changes in a law that could have killed them or severely impacted their long-term health.

The women’s lawsuit calls on the court to permit doctors to offer emergency abortion services if a pregnant person faces complications that make it unsafe to continue the pregnancy; if the pregnant person has underlying medical conditions that are worsened by pregnancy; and if the fetus is unlikely to survive. 

At other points in Craig’s opening arguments, he accused the plaintiffs and all people who have abortions of “killing an unborn child,” and lied that Idaho’s abortion laws “protect both the life of the unborn child and the lives of the mothers.” This comes as anti-abortion lawmakers have ramped up arguments in favor of fetal personhood, suggesting that laws like the Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals to offer stabilizing care to patients (including, if necessary, abortion), applies to unborn fetuses as well as the pregnant person. Lawyers for Idaho argued this at the Supreme Court in defense of their abortion laws earlier this year in Moyle v. United States.

Craig also shrugged off the women and doctors’ testimony that being denied emergency abortions jeopardized their future fertility, asserting that Idaho law “does not protect a right to fertility” and only protects a “right to procreate,” concluding that “killing an unborn child is not protected by a right to procreate.” This is similar to a uniquely cruel argument made by attorneys for Texas, who claimed last year that plaintiffs challenging their abortion ban didn’t have standing, because they may not get pregnant again—especially after the harm inflicted by Texas’ ban had impacted some of the women’s fertility. One plaintiff nearly died of sepsis, and one of her fallopian tubes permanently closed as a result.

This week’s trial in Idaho comes just months after the state’s abortion laws took center stage at the Supreme Court. In 2022, the Biden administration sued the state, arguing Idaho’s abortion laws are at odds with EMTALA. And in June, the Court ruled that doctors in Idaho can provide some pregnant people with emergency abortion care without fear of prosecution for now, but ultimately punted the case. More than one in five OBGYNs have left Idaho since the state’s abortion ban took effect in 2022.

Earlier this year, one Idaho doctor reported that between January and April, six women had to be airlifted to access emergency abortions out-of-state; Idaho’s attorney general baselessly denied this. Craig’s dismissiveness of the plaintiffs on Tuesday was vile—and entirely in line with how the state has been approaching legal challenges.