Idaho Lawmaker Re-Files Bill to Outlaw Abortion in State

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BOISE, Idaho — A lawmaker in Idaho has re-filed a bill that seeks to outlaw abortion in the state by eliminating an exception in current law that forbids criminal prosecution when the mother has given consent to kill her unborn child.

Rep. Heather Scott, R-Blanchard, submitted House Bill 361 on Friday, also known as the Idaho Abortion Human Rights Act.

“While Idaho criminal law currently treats the killing of a human fetus as unlawful, it unequally applies those those homicide statutes by permitting abortions,” the legislation outlines. “This act asserts Idaho’s authority to establish equal justice and protection for all humans in the jurisdiction of Idaho, including the authority of Idaho to nullify contrary federal law and federal court opinions.”

As previously reported, as a man in Scott’s district who murdered a pregnant woman was charged with two counts of homicide — one for the mother and the second for the unborn baby, she asked herself why others are able to get away with killing the unborn since under Idaho law, those not yet born are considered human. She found that the law grants an exemption for abortion.

Title 18-4001 of the Idaho code defines murder as the “the unlawful killing of a human being, including, but not limited to, a human embryo or fetus.” Code 32-102 also states that “a child conceived, but not yet born, is deemed to be an existing person.”

But Chapter 40 of Idaho’s homicide statutes reads in part, “Nothing in this chapter, arising from the killing of an embryo or fetus, shall be construed to permit the prosecution of any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained … [or] of any woman with respect to her embryo or fetus.”

Scott’s bill seeks to eliminate this allowance, as it simply states, “It shall be unlawful for any person to perform, procure, or attempt to perform an abortion.”

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The legislation would seemingly also apply to self-abortion. Mothers may be granted immunity if they assist prosecutors with the investigation or prosecution of the individual who performed the abortion.

The measure also directs the Idaho attorney general to ensure that state agencies enforce the law “regardless of any contrary or conflicting federal statutes, regulations, executive orders or court decisions.”

Last year, in refuting the assertion that Idaho is bound to the 1973 Supreme Court ruling of Roe v. Wade, Scott pointed to language in the state Federal Firearm, Magazine and Register Ban Enforcement Act, which directs officials to ignore any federal laws that are contrary to language in the Idaho Constitution as they pertain to firearms.

“It is the intent of the legislature in enacting this act to protect Idaho law enforcement officers from being directed, through federal executive orders, agency orders, statutes, laws, rules, or regulations enacted or promulgated on or after the effective date
of this act, to violate their oath of office and Idaho citizens’ rights under Section 11, Article I, of the Constitution of the State of Idaho,” the 2014 Act reads.

“My question to you is: Why would we stand up for firearms when we won’t stand up for human life?” Scott asked.

While abolitionists — those who seek the end of abortion rather than its regulation — ardently supported the measure in 2019, the bill was opposed by some professing pro-life groups who opined that the effort is the wrong approach.

“House State Affairs Chairman Steve Harris has told the bill’s sponsors that unless Idaho Chooses Life supports the bill, he will not hear it,” a Facebook page dedicated to the Act outlined last year.

Idaho Senate Health and Welfare Committee Chairman Fred Martin, a Republican, was also recorded stating that he hopes the legislation “never sees the light of day.”

“It will be ruled unconstitutional,” Martin asserted. “It will cost the State millions and millions and millions of dollars that we pay the abortion people. We’ll be paying people who are performing abortions. We’ll be subsidizing them …”

However, as previously reported, even in early America, the belief that abortion is murder and should be accordingly outlawed was not uncommon.


Philadelphia legal writer, educator and Christian apologist Francis Wharton, who wrote several books on American law, penned an entire chapter on abortion in his book American Criminal Law,” published in 1855.

Wharton called abortionists “persons who are ready to degrade their humanity to this occupation” and stated in regard to abortion in general, “Such conduct cannot be too strongly condemned, and is the more deserving of receiving the punishment awarded for the criminal offense in question.”

In 1850, Pennsylvania’s Supreme Court became the first high court in the nation to declare that abortion must be prohibited at any stage of gestation for any reason.

While other state courts allowed preborn babies to be aborted up to four months of gestation by reason of a “quickening” theory, which stated that a person was not protected until the mother felt them kicking in the womb, the Pennsylvania Supreme Court would accept no such argument.

In Mills v. Commonwealth, the court declared that the theory “is not … the law in Pennsylvania, and ought never to have been the law anywhere.” The ruling became a strong precedent that other state courts began to review and follow.

By the 1900’s, due to the influence of the Pennsylvania Supreme Court, nearly every state in the nation prohibited abortion for any reason, with the exception of Arkansas, Mississippi and North Carolina.

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