After two days of testimony, mostly in opposition, Idaho’s House State Affairs Committee voted to pass this year‘s version of the “conscience” bill, which lets medical professionals such as nurses and pharmacists refuse to perform medical actions or fill prescriptions that could cause an abortion — as well as emergency contraception — or hasten the end of life. The bill has already passed the Senate.
This year’s bill is different from last year‘s in several ways, such as the inclusion of the end-of-life component, which brought in other opponents such as AARP and, perhaps, made debating and voting against the bill more palatable to legislators who would not otherwise want to be perceived as being pro-abortion. In addition was the fact that the bill went through the State Affairs committees in both houses — reportedly not only because the State Affairs committees are thought to be more conservative, but because of the perception that Health & Welfare committees — each headed by women — would be less receptive to the bill, especially after chair Senator Patti Anne Lodge, R-Huston, held the bill in her committee last year.
Lending credence to this argument, voting on the bill was split not only along partisan lines but also among gender lines: All three votes on the bill featured all Republican men on one side and all Democratic women on the other. A total of three motions were made on the bill: To send it to the House, to send it to the amending order to remove the end of life provisions, and to hold it in committee. The latter two motions failed, with the female Democrats being the only ones to vote for them. The motion to send it to the House passed, with the same female Democrats voting no. The bill will now move to the House floor. If it passes there, it then goes to Governor C.L. “Butch” Otter for signing.
Perhaps reflecting the perception that the House is more conservative than the Senate, testimony on the bill began with anti-abortion activist David Ripley of Idaho Chooses Life, whom Planned Parenthood had said drafted the bill but who had not testified on it thus far. There, some of the testimony focused on the definition of when life began: At the time when the sperm and egg join, or when implantation in the uterine wall occurs.
The difference is significant, because not only does Plan B emergency contraception work by preventing such implantation, so do other forms of contraception, such as IUDs and some birth control pills. Defining the beginning of life as sperm-egg fusion, rather than implantation, could endanger these other forms of contraception as well.
Dr. Kara Cadwallader, responding to questions from bill co-sponsor Representative Raul Labrador, R-Eagle, said that it was typically “folks outside the medical community” who defined life as when the egg and sperm join, and that it was “not the standard in the medical community.” “Mother Nature is our biggest enemy in implanting,” she added, noting that up to half the time, the merged cells never implant. “It happens naturally all the time.”
Concerns were brought up about women in rural communities having access to Plan B — which must be administered within five days of an act of unprotected intercourse to work — if faced with a pharmacist denying the medication based on a conscience provision, but sponsor Senator Chuck Winder, R-Eagle — citing testimony from the Idaho Women’s Network Taryn Magrini that about half of Idaho’s approximately 400 pharmacies didn’t carry Plan B in the first place — concluded from that statement that rural pharmacies probably weren’t carrying it because they didn’t see a demand for it.
Certified nurse-midwife Charlotte Salinas, as well as other speakers, noted that certain medications have multiple uses besides causing abortion, such as treating ulcers and constipation, and expressed concern that women would be denied medications they needed out of the expectation they were using it for an abortion.
Representative Carlos Bilbao, R-Emmett, expressed disapproval of Plan B contraception in the first place. “When does personal responsibility come into this? If someone is going to be become sexually active, don’t they have the responsibility to get birth control pills?” When reminded that it can be used after a birth control failure (as well as after a rape), he responded, “Isn’t it their responsibility to seek out the pharmacist or doctor? It’s not my responsibility, it’s yours, if you’re going to engage in sexual activity.”
The end-of-life section of the debate focused primarily on living wills and concern that people testifying weren’t advocating for physician-assisted suicide, which is illegal in Idaho. Legislators referred to having received hundreds of comments from constituents, mostly opposed to the end-of-life provision.
Representative Elfreda Higgins, D-Garden City, who made the motion to remove the end-of-life provision from the bill, spoke about the death of her father, a minister, and how it took her, the family, and an attorney three days to have him taken off life support at his request, after which he survived five days. “He was ready to go meet his Heavenly Father, but on his own terms,” she said. Cadwallader also suggested that pharmacists or nurses could refuse to dispense pain medication such as morphine because it might also have the effect of hastening the end of life.
In response to questions about the conscience provision that doctors already have, Cadwallader pointed out that doctors also had the requirement to provide a referral — something that SB1353 does not include.
Several legislators asked opponents of the bill about a similar conscience bill that passed in Louisiana. “Bad legislation is bad legislation no matter where it is,” Cadwallader said, adding that the fact that the Louisiana legislation was broader did not make the Idaho legislation okay because it was narrower. Legislators also asked about a recent Ninth Circuit Court ruling that said Washington pharmacists couldn’t refuse to dispense Plan B based on a conscience provision. However, Washington has a law requiring pharmacists to carry Plan B, which Idaho does not have.
Several people, mostly attorneys, also testified about the legal aspects of the bill, predicting it would result in more lawsuits. Erika Birch noted that the bill defines certain terms differently from federal legislation offering protection based on religious grounds, saying it would cause confusion and an increase in litigation. Barbara Jordan, with the Idaho Trial Lawyers Association, pointed out that the bill granted medical professionals immunity. “If you give a certain class of people immunity, someone is giving up a right. And in this case, it’s the patient,” she said.
The bill also contains provisions that medical professionals cannot make conscience decisions “because of a patient’s race, color, religion, sex, age, disability or national origin” — meaning that, if the bill passes, medical professionals would be permitted to make a conscience decision based on a person’s perceived sexual orientation.
Full disclosure: Sharon Fisher is a candidate for the Idaho Legislature, District 21.