This year’s Idaho Legislature passed a couple of abortion-related bills.  One required reporting of complications during an abortion and the other dealt with partial birth abortions.

Other conservative state legislatures around the country have recently passed a barrage of bills to sharply restrict abortions.

Georgia, Kentucky, Missouri, Mississippi and Ohio have passed legislation barring most abortions after the first 6-8 weeks. These are called “heartbeat” bills and are premised on the idea that abortion should be banned once that can be detected.

Alabama’s governor just signed a measure to ban all abortions except in cases where the health of the mother is at risk or the fetus has “fatal anomalies”.  There is no exception for either rape or incest.

In contrast, both New York and Vermont have passed legislation strengthening abortion rights.

The driver of all this activity is the two recent Trump appointees to the U.S. Supreme Court, Gorsuch and Kavanaugh. Some think their conservative bent could lead to a flat-out overturning of the 1973 landmark case Roe v. Wade or, at least, a carve-back. The current structure legally is that abortions are allowed before viability (24-28 weeks), while states can impose more restrictions after that point.

Striking down Roe is not a given.  Generally speaking, today’s court is split with five generally conservative justices and four more liberal ones.  But, Chief Justice John Roberts is a strong believer that the Supreme Court should not disregard previous decisions and others may be in the same camp.

Many court observers, including pro-life scholars, believe that a complete reversal of Roe is highly unlikely. Rather, it is possible that the point where restrictions are upheld could be moved forward somewhat closer to conception, or the court could approve more restrictions after viability, or some combination of both.

The recent Alabama law is unlikely to survive.  The heartbeat bills are probably also untenable.  But, Utah has moved the restriction point to 18 weeks.  That kind of restriction might survive.

What are the trends in abortion in the United States?  According to the federal Centers for Disease Control, the raw number peaked in 1990 at 1,429,247.  As of 2015, the number had fallen by more than half to 638,169 (roughly the number in 1973 when legalization occurred).  Of those, 91.1% were performed before 13 weeks while only 1.3% occurred after 21 weeks.

Where is the public on the issue?  Gallup in May of 2018 did a survey of American adults that is pretty insightful.  If asked whether they consider themselves personally “pro-choice” or “pro-life”. A evenly-matched 48% place themselves in each category.

A rather large percentage, 60%, believe that abortion should be legal in the first three months while 34% do not.  But, that fails to capture some nuance. Only 45% think it should be legal when the women doesn’t want the child. In contrast, 83% support allowing abortion when the women’s life is endangered and 77% believe it should be allowable in cases or rape or incest.

Overall, only 29% of American adults believe abortion should be legal in any circumstances while 18% support an outright ban.  A full 50% think it should be legal in certain circumstances. Americans don’t back those who push unlimited abortion, but they don’t embrace bans either. 

What should Idaho’s legislators do in the future?  Most GOP members espouse strong pro-life positions. They could bring forth bans in the first trimester.  That would likely be a futile approach. Alabama’s hardline approach would go nowhere.

Alternatively, they might advance passage of measures to push viability forward a bit or enhance post-viability restrictions.

Another option would be to wait and see how measures passed in other states fare before considering anything.  That would avoid potentially significant legal expenses.

One area of possible bipartisan consensus would be to encourage adoptions.

Steve Taggart is an Idaho Falls attorney specializing in bankruptcy (  He has an extensive background in politics and public policy. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..