After Casey, did Idaho's abortion statutes and the 1998 draft legislation comply with U.S. Supreme Court constitutional standards?

Plain-English summary

Representative Tippets asked the AG four questions about the constitutional status of Idaho's abortion statutes in light of Casey and pending 1998 legislation: (1) what U.S. Supreme Court standards governed state regulation, (2) whether Idaho's statutes complied, (3) whether draft bills under consideration in 1998 fixed any problems or created new ones, and (4) whether the Idaho Constitution might provide broader protection than the federal Constitution.

On U.S. Supreme Court standards: Casey reaffirmed that women have a constitutional right to a pre-viability abortion, and a state may not place an "undue burden" (a substantial obstacle) on that right. After viability, a state may proscribe abortion except where necessary in appropriate medical judgment to preserve the woman's life or health. Casey upheld 24-hour waiting periods, informed consent provisions giving truthful nonmisleading information about the procedure, attendant health risks, and gestational age, and one-parent consent for minors with adequate judicial bypass, but only when these provisions had medical-emergency exceptions. The Court invalidated spousal notification or consent.

On Idaho's statutes: several constitutional problems. First, Idaho Code § 18-608's requirement that second-trimester abortions be performed in a hospital was unconstitutional under Akron and the surviving Casey framework. Second, the ban on third-trimester abortions in Idaho's statutes did not contain a health exception, contrary to Casey. Third, Idaho Code § 18-604(7)'s definition of "viability" was broader than the U.S. Supreme Court's, narrowing the woman's pre-viability right. Fourth, Idaho Code § 18-609(6)'s parental notification provision had no judicial bypass, which Bellotti and its progeny require. Fifth, it was unclear whether the informed-consent requirements of Idaho Code § 18-609 carried criminal penalties, raising statutory clarity concerns.

On the 1998 draft bills: the Idaho Abortion Statute Amendments draft bill removed the second-trimester hospitalization requirement but did not add a health exception to the third-trimester ban or fix the viability definition. The Partial Birth Abortion draft bill faced serious problems given the federal courts that had recently invalidated such bans (Voinovich, Woods, Stenberg/Carhart, Evans). The Parental Consent draft bill required two-parent consent (a contested approach), with judicial bypass mechanics that needed tightening.

On the Idaho Constitution: an open question. Some state supreme courts had read their state constitutions to provide broader protection than the federal Constitution. The Idaho Supreme Court had not specifically addressed the issue, though one state district court had concluded the Idaho Constitution provides "broader protection than the federal constitution" on abortion. The question remained open at the Idaho appellate level.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The constitutional framework for state abortion regulation has been substantially rewritten since 1998. Casey was overruled by Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), which returned authority over abortion regulation to the states without the undue-burden constraint. Idaho's abortion statutes have been substantially amended since 1998, including significant restrictions enacted after Dobbs. This 1998 opinion is now of historical interest only. Anyone advising on current Idaho abortion law must consult current statutes, the post-Dobbs case law, and any later AG opinions.

Common questions

Q: What was the "undue burden" standard?
A: Casey's articulation of when a pre-viability abortion regulation crosses the line. A regulation imposed an undue burden if it placed a substantial obstacle in the path of a woman seeking a pre-viability abortion. State regulations designed to foster the woman's health were valid if they did not impose an undue burden. The standard replaced Roe's trimester framework. After Dobbs (2022), this standard no longer governs.

Q: Why does the third-trimester ban need a health exception?
A: Because Casey (and its predecessors) required that any post-viability proscription on abortion contain an exception "for preservation of the life or health of the mother" as a constitutional matter. A state could ban late-term abortions but not without that exception. Idaho's statutes lacked the health language at the time of this opinion.

Q: What is a judicial bypass?
A: An alternative path for a minor seeking an abortion to obtain authorization without parental consent. The U.S. Supreme Court (Bellotti v. Baird) held that any parental consent requirement must include a judicial bypass that allows the minor to demonstrate she is mature enough to make the decision herself, or that the abortion is in her best interests. Idaho Code § 18-609(6)'s parental notification provision lacked any bypass, judicial or otherwise.

Q: Why was the viability definition a problem?
A: Casey held that "viability" means a realistic possibility of maintaining and nourishing a life outside the womb, which the Supreme Court has noted can occur as early as 23 to 24 weeks. A state definition that captured fetuses earlier than this would shrink the pre-viability right protected by Casey. The opinion concluded that Idaho's definition at § 18-604(7) was broader than Casey's, creating a constitutional gap.

Background and statutory framework

Idaho's abortion statutes at the time of this opinion sat in title 18, chapter 6 of the Idaho Code, including §§ 18-604, 18-608, and 18-609. The federal constitutional framework was set by Roe v. Wade (1973) and modified by Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). The relevant federal cases on partial-birth abortion at the time of this opinion (Voinovich, Woods, Stenberg/Carhart, Evans) collectively held that prohibitions on specific abortion procedures could not require women to use riskier alternatives.

The opinion was issued during the 1998 legislative session and was meant to inform debate on three pending draft bills.

Citations and references

U.S. constitutional cases: Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973).

Federal partial-birth-abortion cases: Women's Medical Professional Corporation v. Voinovich, 130 F.3d 187 (6th Cir. 1997); Planned Parenthood of Southern Arizona, Inc. v. Woods, No. 97-385-TUC-RMB, 1997 WL 679921 (D. Ariz. Oct. 27, 1997); Carhart v. Stenberg, 972 F. Supp. 507 (D. Neb. 1997); Evans v. Kelley, 977 F. Supp. 1283 (E.D. Mich. 1997).

Idaho statutes: Idaho Code §§ 18-604(7), 18-608, 18-609, 18-609(6).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP98-01.pdf

Original opinion text

ATTORNEY GENERAL OPINION NO. 98-1
The Honorable John H. Tippets
Idaho House of Representatives
Idaho State Legislature
STATEHOUSE MAIL
Per Request for Attorney General’s Opinion
QUESTIONS PRESENTED
1.

What are the standards expressed by the United States Supreme Court regarding a
state’s ability to regulate abortion?

2.

Do Idaho’s statutes regulating abortion conform with the United States Supreme
Court’s standards?

3.

Do any of the draft bills that the Idaho Legislature may consider during the 1998
session pertaining to abortion resolve potential constitutional problems with the
current Idaho statutes or create additional constitutional problems?

4.

Does the Idaho Constitution create any rights or limits that pertain to the state’s
ability to regulate abortion?
CONCLUSION

1.

The United States Supreme Court has held that a woman has a constitutional right
to obtain a pre-viability abortion and a state may not place an undue burden on this
right. After fetal viability, a state may proscribe abortion except where it is
necessary in appropriate medical judgment for the preservation of the life or health
of the mother. The Supreme Court has upheld a 24-hour waiting period and an
informed consent provision requiring the giving of truthful, nonmisleading
information about the nature of the abortion procedure, about attendant health
risks of abortion and childbirth, and about probable gestational age of the fetus.
The provisions upheld contained medical emergency exceptions. The Court has
also upheld a one-parent consent requirement for a minor seeking an abortion that
included an adequate judicial bypass procedure. Further, the Court has upheld
reasonable recordkeeping and reporting provisions as long as the confidentiality of
the woman is protected and the increased reporting costs do not become a
substantial obstacle to a woman’s right to obtain a pre-viability abortion. Finally,
the Court has invalidated any spousal notification or consent requirement.

2.

There are some constitutional problems with Idaho’s current abortion statutes. To
begin, the requirement contained in Idaho Code § 18-608 that second-trimester

abortions be performed in a hospital is unconstitutional. In addition, Idaho
statutes do not contain a health exception for the ban on third-trimester abortions.
Further, the definition of viability in Idaho Code § 18-604(7) is broader than the
definition provided by the United States Supreme Court and thus correspondingly
narrows the woman’s ability to obtain an abortion prior to viability. Also, the
parental notification provision contained in Idaho Code § 18-609(6) does not
contain a bypass procedure, judicial or otherwise. Finally, it is not entirely clear
whether the legislature intended the informed consent requirements of Idaho Code
§ 18-609 to carry criminal penalties.
3.

a.

Idaho Abortion Statute Amendments Draft Bill: This draft bill deletes the
second-trimester hospitalization requirement contained in the current
statute but does not add a health exception to the post-viability abortion
ban. Likewise, it retains the problematic definition of “viability.” The bill
contains a two-parent consent requirement; authority is split on whether a
state can require a two-parent consent, even with a judicial bypass. In
addition, the bill specifies that a violation of the current informed consent
provision is a misdemeanor; however, it has not provided a clear
enforcement mechanism to the additional duties it imposes upon
physicians. Additionally, concerning the proposed misdemeanor language,
there could be circumstances in which a physician could be found to be in
violation of the informed consent provision without a scienter requirement.
This could unconstitutionally chill the willingness of physicians in the state
to perform abortions. Regarding the reporting requirements, it is
imperative that the confidentiality of the woman be protected, and
precedent indicates that the physician’s identity should be protected from
public disclosure as well. This bill protects the identity of the woman but,
because it is not clear whether the reports are available to the public, it is
not clear whether the physician’s identity is protected from public
disclosure.

b.

Partial Birth Abortion Draft Bill: Partial birth abortion prohibitions have
been challenged in several states. Thus far, reviewing courts have
invalidated them primarily on the ground that a woman cannot be required
to use a different and potentially riskier procedure. Women’s Medical
Professional Corporation v. Voinovich, 130 F.3d 187 (6th Cir. 1997);
Planned Parenthood of Southern Arizona, Inc. v. Woods, No. 97-385-TUCRMB, 1997 WL 679921 (D. Ariz. Oct. 27, 1997); Carhart v. Stenberg, 972
F. Supp. 507 (D. Neb. 1997); Evans v. Kelley, 977 F. Supp. 1283 (E.D.
Mich. 1997). Ohio has filed a petition for a writ of certiorari on this issue
with the United States Supreme Court, which has not yet been denied or
granted.1

c.

4.

Parental Consent to Abortion Draft Bill: In addition to requiring that a
minor obtain the consent of one parent, this draft bill would require that a
pregnant woman who has had a guardian or conservator appointed after a
finding of disability, incapacity or mental illness obtain the consent of her
guardian or conservator before having an abortion. While there is an
absence of case law on this issue, a reviewing court might not conclude that
such a woman is in the same situation as a minor and might find this
provision troubling under some circumstances. The judicial bypass
provision contained in this bill appears generally sound; however, the
drafters may want to consider including a specific timetable for court
hearings and decisions. Further, while providing for civil liability, the bill
does not specify whether anyone beyond the physician would be liable nor
does it limit the amount of recovery or whether guardians and conservators
have standing to sue in addition to parents. As with the Idaho Abortion
Statute Amendments bill, it is not clear whether the identity of the
physician is protected from public disclosure under the reporting
requirements.

Some state supreme courts have construed their state constitutions as providing
broader protection for abortion than does the federal Constitution. The Idaho
Supreme Court, while it has held that the Idaho Constitution can be construed
more broadly than the federal Constitution, has not yet addressed this issue
specifically. One state district court held that the Idaho Constitution provides
“broader protection than the federal constitution” when addressing an abortion
issue. However, this remains an open question at the state appellate level.
ANALYSIS

Question No. 1:
You have asked what standards the United States Supreme Court has established
regarding a state’s ability to regulate abortion. The most significant recent statement
from the United States Supreme Court concerning abortion is Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674
(1992). In that opinion the Court reaffirmed earlier decisions, holding that a woman has
a constitutional right to obtain a pre-viability abortion, and a state may not place an
undue burden on this right. A regulation imposes an undue burden if it places a
substantial obstacle in the path of a woman who seeks to abort a nonviable fetus.
The Casey Court went on to hold that state regulations designed to foster the
health of a woman who seeks an abortion before fetal viability are valid if they do not
constitute an undue burden on that right. Id. at 878. In addition, a state has a “profound
interest in potential life” and “throughout pregnancy, the state may take measures to

ensure that the woman’s choice is informed.” Id. The measures designed to advance this
interest will not be invalidated as long as they are truthful and not misleading and they do
not place “an undue burden” on the woman’s right to obtain a pre-viability abortion. Id.
at 878, 882. However, unnecessary regulations that have the purpose or effect of
presenting a substantial obstacle to a woman who seeks an abortion before viability
impose an undue burden on that right and are invalid. Id.
After fetal viability, a state may proscribe abortion except where it is necessary, in
appropriate medical judgment, for preservation of the life or health of the mother. Id. at
878. Viability is the point in time at which there is a realistic possibility of maintaining
and nourishing a life outside the womb. Id. at 870. The United States Supreme Court
has noted that viability can occur as early as 23 to 24 weeks. See, e.g., Roe v. Wade, 410
U.S. 113, 160, 93 S. Ct. 705, 730, 35 L. Ed. 2d 147 (1973).
In Casey, the Supreme Court upheld several types of abortion regulations. For
example, the Supreme Court upheld an informed consent provision that required the
giving of truthful, nonmisleading information about the nature of the abortion procedure,
about attendant health risks of abortion and of childbirth, and about probable gestational
age of the fetus, holding that this requirement did not impose an undue burden on the
woman’s right to choose to terminate her pregnancy. Id. at 881. Likewise, the Court
upheld a 24-hour waiting period. Id. at 884. Importantly, both of these requirements
contained medical emergency exceptions. Id. at 879. It is clear from reading the Casey
decision that the informed consent provision and 24-hour waiting period would not have
been upheld without the medical emergency exception. Id. at 885. Further, the Court
observed that the Pennsylvania statute at issue also provided that the doctor did not have
to comply with the informed consent provision if he or she reasonably believed that
furnishing the information would have a severely adverse effect on the physical or mental
health of the patient. Id. at 883-84.
The Supreme Court also upheld a one-parent consent requirement for a minor
seeking an abortion that included an adequate judicial bypass procedure allowing a court
to authorize the performance of an abortion if the minor was mature and capable of
giving informed consent or if the abortion was in her best interest. Id. at 899. The
Supreme Court held it unconstitutional to require a woman notify her spouse or obtain his
consent prior to an abortion. Id. at 895.
In Casey, the Supreme Court went on to uphold reasonable recordkeeping and
reporting provisions, as long as the confidentiality of the woman was protected. Id. at
900-901. The Court held that recordkeeping and reporting provisions are reasonably
directed to the preservation of maternal health, but that they must properly respect a
patient’s confidentiality and privacy. The Court then noted that the requirements it was
reviewing did not impose a substantial obstacle to a woman’s choice because the increase
in the cost of the abortions would be slight. Id. at 901. The Court left open the

possibility that at some point increased reporting costs could become a substantial
obstacle, but stated there was no showing of this on the record before it. Id. The Court
did, however, strike down one particular reporting provision which required that a
married woman provide her reason for failing to notify her husband about the abortion.
Id.
Hopefully these basic principles and black letter law will be useful as abortion
issues are considered.
Question No. 2:
Your second question concerns Idaho’s current abortion statutes and whether these
statutes conform to the constitutional standards set forth by the United States Supreme
Court. Idaho’s current abortion statutes are found at Idaho Code §§ 18-601, et seq. It is
worth noting that title 18 deals primarily with criminal matters and is entitled “CRIMES
AND PUNISHMENTS.” Copies of these statutes are enclosed with this opinion. I have also
enclosed the 1993 Attorney General’s Opinion reviewing the constitutionality of these
statutes. 1993 Idaho Att’y Gen. Ann. Rpt. 5.
As a preliminary matter, this opinion notes that Idaho’s abortion statutes have not
been judicially challenged. Statutes are entitled to a presumption of constitutionality,
unless the constitutional issue raised by the statute has already been judicially resolved.
See, e.g., Bon Appetit Gourmet Foods, Inc. v. State, Dept. of Employment, 117 Idaho
1002, 793 P.2d 675 (1989). As discussed below, some issues raised by Idaho statutes
have been judicially resolved by the United States Supreme Court and some have not. As
to those issues which have not been resolved, the Attorney General has a duty to defend
the state statutes pursuant to Idaho Code § 67-1401.
Because Idaho’s abortion statutes were enacted prior to the Casey decision, the
statutes are drafted under the trimester construct articulated in Roe v. Wade, 410 U.S.
113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). Idaho Code § 18-608 permits first-trimester
abortions and, also, second-trimester abortions if the second-trimester abortions are
performed in a hospital. Idaho Code § 18-608(3) prohibits third-trimester abortions
unless the abortion “is necessary for the preservation of the life of [the] woman or, if not
performed, such pregnancy would terminate in birth or delivery of a fetus unable to
survive.”
There are three constitutional problems with Idaho Code § 18-608. First, the
United States Supreme Court has held that a state may not require that second-trimester
abortions be performed in a hospital. Akron v. Akron Center for Reproductive Health,
Inc., 462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687 (1983). Medical science has
advanced so that some second-trimester abortions can be safely performed without
hospitalization. Consequently, the Supreme Court has concluded that requiring

hospitalization for all second-trimester abortions is unreasonable and unconstitutional.
Id.
Second, as discussed above, under the Casey decision, while a state may prohibit
post-viability abortions, it can only do so if the life or health of the mother is not
jeopardized. At least one federal circuit court of appeals has held that “health”
encompasses not only a severe non-temporary physical health problem, but also severe
non-temporary mental and emotional harm. See Women’s Medical Professional
Corporation v. Voinovich, 130 F.3d 187 (6th Cir. 1997). Idaho’s statute contains an
exception to the third-trimester prohibition if the life of the mother is endangered. It does
not, however, contain an exception if her health is jeopardized. The omission of any
health exception in Idaho’s ban on third-trimester abortions creates an additional
constitutional problem.
A third constitutional problem may be raised when the third-trimester abortion
prohibition is read in conjunction with the statute’s definitions of the “third trimester of
pregnancy” and of viability. Idaho Code § 18-604(6) defines the third trimester of
pregnancy as “that portion of a pregnancy from and after the point in time when the fetus
becomes viable.” Idaho Code § 18-604(7) defines a viable fetus as “a fetus potentially
able to live outside the mother’s womb, albeit with artificial aid.” This definition of
viability departs from the definition provided by the United States Supreme Court. The
United States Supreme Court has held that viability is the time at which there is a
“realistic possibility of maintaining and nourishing a life outside the womb.” See Casey,
505 U.S. at 870. Should a case arise under this portion of the statute, a court might
conclude there is a difference between a “realistic possibility” of maintaining and
nourishing a life outside the womb and a “potential” ability to live outside the womb. A
broader definition of viability which correspondingly narrows or restricts the woman’s
ability to obtain an abortion prior to viability conflicts with the Casey decision.
Under Idaho Code § 18-609(2), the Idaho Department of Health and Welfare must
publish and make available to abortion providers printed materials containing
information about fetal development, abortion procedures and risks, and services
available to assist a woman through a pregnancy, at childbirth and while the child is
dependent. The department must also annually compile and report to the public the
number of abortions performed in which materials containing the information described
above were not provided to the pregnant patient. See Idaho Code § 18-609(4). Idaho
Code § 18-609(3) provides that these materials should be provided to the pregnant
patient, if reasonably possible, at least 24 hours before the performance of the abortion.
Idaho Code § 18-609(4) further provides that disclosure of the materials is not required if
the physician reasonably determines that disclosure of the materials would have a severe
and long-lasting detrimental effect on the health of the woman.

In the 1993 Attorney General’s Opinion, this office concluded that this informed
consent provision and 24-hour waiting period were probably constitutional under the
Casey decision. However, this office also observed that it was not entirely clear whether
the informed consent provision carried with it any criminal penalties. This office’s
analysis on this point is fairly lengthy and will not be restated in detail here. As noted,
the opinion containing that analysis is enclosed with this opinion. The office ultimately
concluded that while reasonable arguments could be raised on both sides of the issue, the
more persuasive argument was probably that criminal penalties had not been intended.2
This office also reviewed the parental notification provision contained in Idaho
Code § 18-609(6). This notification provision does not contain a judicial bypass
procedure. The opinion of this office was that while the statute would probably survive a
facial challenge, it was potentially vulnerable to a constitutional attack under certain
factual circumstances because of the absence of a bypass procedure, judicial or otherwise.
Question No. 3:
Your third question concerns the proposed abortion draft bills presently before the
Idaho Legislature. The draft bills are RS07560, RS07503, and a document entitled
“Idaho Abortion Statute Amendments.” You have asked whether any of these draft bills
resolve constitutional problems with the current statutes or raise additional constitutional
problems.
We have reviewed three draft abortion bills which we understand will be
considered by the Idaho Legislature. This opinion will not discuss policy implications of
those draft bills, as that is the prerogative of the legislature. The purpose of this opinion
and the proper role of this office is to discuss any possible constitutional problems in
these draft bills and refer you to relevant case law. It is the duty of the Office of the
Attorney General to give an opinion in writing, when required, to senators and
representatives upon questions of law. Idaho Code § 67-1401(7).
A.

Idaho Abortion Statute Amendments

The first draft bill this opinion will discuss is entitled “Idaho Abortion Statute
Amendments.” This proposal provides a list of definitions, deletes the second-trimester
hospitalization requirement contained in the current law, provides a section requiring that
a minor seeking an abortion obtain the consent of both parents or judicial authorization,
amends Idaho Code § 18-609(3) to clarify that a physician who does not comply with the
informed consent provisions of the current statute will be subject to misdemeanor
criminal penalties, sets forth physician’s duties when performing an abortion on a woman
who is carrying an unborn child of 20 or more weeks gestational age, and imposes certain
recordkeeping and reporting requirements on physicians. The draft bill also contains a
severability provision.

Section I of the draft bill sets forth a list of definitions. The definition of viability
is the same as that in the current abortion statute. As discussed above, this definition
could be construed as broader than the definition set forth by the Supreme Court in
Casey.
Under Section II of the draft bill, the hospitalization requirement of Idaho Code
§ 18-608(2) is deleted, correcting that constitutional defect in Idaho’s current statute.
The other constitutional defect of Idaho Code § 18-608, discussed above, the absence of a
health exception for the prohibition on third-trimester abortions, has not been corrected
by this draft bill. Consequently, even if this draft bill is passed, that constitutional defect
in the current abortion statute would remain.
Section III of the draft bill contains the parental consent provision for a minor
seeking to obtain an abortion. This portion of the draft bill also includes a judicial bypass
procedure, a procedure which, as discussed, is missing from the parental notification
provision in Idaho’s current abortion statute. The bill provides that the attending
physician performing an abortion must obtain the informed written consent of the minor
and the minor’s “parent or guardian.” In the definitions contained at Section I of the bill,
“parent” is defined as meaning “both parents.” This bill is not a one-parent consent bill,
but instead requires the consent of both parents. As noted, the United States Supreme
Court has upheld laws which require a minor to obtain the consent of one parent before
obtaining an abortion, as long as those laws contain an adequate judicial bypass
procedure. Casey, 505 U.S. at 899. However, this bill requires the consent of both
parents. Research discloses a split of authority on whether a state may require the
consent of both parents. For example, in Planned Parenthood League of Massachusetts,
Inc. v. Attorney General, 677 N.E.2d 101 (Mass. 1997), the Supreme Court of
Massachusetts invalidated a law requiring a pregnant unmarried minor to obtain the
consent of both parents, holding that it violated her constitutional rights under the federal
Constitution. In reaching that decision, the court noted that, “of the states that have a
two-parent consent provision, almost all do not enforce it or have been enjoined from
enforcing it.” Id. at 107, n.11. However, the Fifth Circuit Court of Appeals upheld a
statute requiring the consent of two parents in Barnes v. State of Mississippi, 992 F.2d
1335 (5th Cir.), cert. denied, 510 U.S. 976, 114 S. Ct. 468, 126 L. Ed. 2d 419 (1993).
There is legal precedent on both sides of this issue. Idaho, however, is in the Ninth
Circuit, which may be more likely than other federal circuits to overturn a two-parent
consent provision.3
Section IV of the draft bill amends Idaho Code § 18-1609(3) to make clear that a
physician who fails to comply with the informed consent provisions of Idaho’s current
law is subject to a misdemeanor penalty and may also be disciplined for unprofessional
conduct. However, the bill does not clearly identify an enforcement mechanism for the
additional duties it imposes.

As discussed, this draft bill imposes a series of new duties upon physicians;
viability testing before aborting a fetus of 20 or more weeks gestational age, the presence
of two physicians when a viable unborn child is aborted, the submission of tissue for a
pathology test, and various recordkeeping and reporting requirements. The draft bill does
not expressly provide whether a physician or abortion provider would also be criminally
liable for violating or failing to perform any of the additional duties imposed by the draft
bill. The additional duties created by this draft bill raise the same ambiguity as the
current informed consent provision of Idaho Code § 18-609. The new misdemeanor
provision only applies to Idaho Code § 18-609(3). Under the law already in place, Idaho
Code § 18-605 makes it a felony for anyone to produce an abortion “except as permitted
by this Act.” The question arises as to whether the felony provision of Idaho Code § 18605 would apply to the new requirements of the Act or whether no penalty was intended.
Added to this is the Eighth Circuit’s opinion in Planned Parenthood, Sioux Falls
Clinic v. Miller, 63 F.3d 1452 (8th Cir. 1995), cert. denied, — U.S. —, 116 S. Ct. 1582,
134 L. Ed. 2d 679 (1996), in which the Eighth Circuit held that it was unconstitutional
for the state of South Dakota to impose criminal liability against physicians who violate
abortion laws without also including a mens rea or scienter requirement. “Mens rea” and
“scienter” are legal terms for a defendant’s guilty state of mind or guilty knowledge. The
Eighth Circuit Court of Appeals concluded that a strict criminal liability statute would
have a profound chilling effect on the willingness of physicians to perform abortions and
would thus create a substantial obstacle to a woman’s right to have an abortion. The
felony provision of Idaho Code § 18-605 does not contain a scienter requirement. If
Idaho Code § 18-605 were deemed to apply to the new duties and requirements created
by this draft bill, a court could conclude the bill creates a chilling effect on the
willingness of physicians to perform abortions in this state. It may well be that the
authors of this draft bill do not intend for any criminal penalties to apply to the new
duties. However, because this bill is drafted so as to be placed within the criminal code,
it would be advisable for the authors to clarify this issue.
A second problem concerns the misdemeanor language the draft bill adds to the
current informed consent provision. While this new language contains a scienter
requirement, this requirement would not apply in all circumstances. The draft bill states
that if the “attending physician’s agent” fails to perform one of the requirements of the
informed consent section, the “attending physician” is guilty of a misdemeanor. A
situation could arise where a physician is unaware that his agent failed to fulfill the
informed consent requirements and, yet, pursuant to the bill, the physician could still be
held criminally liable for the agent’s acts. This transferred responsibility, as it were,
again creates strict criminal liability on the part of the attending physician. While the
drafters of this bill may be concerned that physicians should exercise proper control over
their agents, the principles articulated by the Eighth Circuit appellate court in Miller still
need to be considered. With that opinion in mind, and considering the close scrutiny
given such statutory language by the courts, the drafters may wish to avoid the creation

of a strict liability criminal offense in the abortion context. The drafters may want to
consider including a gross negligence scienter requirement for those instances when a
physician has not properly supervised his or her agent, and the agent knowingly violates
the requirements of Idaho Code § 18-609(3).
Section V of the draft bill imposes a series of physician duties. These duties
include viability testing if the fetus is 20 or more weeks gestational age, a requirement
that, when a viable fetus is to be aborted, a second physician be present in order to seek
to preserve that unborn child’s life, and a requirement that sample tissue removed at the
time of the abortion be submitted to a board-certified pathologist for examination. These
provisions are similar in language to provisions which have been upheld by the United
States Supreme Court in Planned Parenthood Ass’n of Kansas City, Missouri, Inc. v.
Ashcroft, 462 U.S. 476, 103 S. Ct. 2517, 76 L. Ed. 2d 733 (1983), and Webster v.
Reproductive Health Services, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410 (1989).
Because identical language to that in the draft bill has already been upheld by the United
States Supreme Court, in my opinion these provisions do not violate the federal
Constitution.
Section VI contains a reporting requirement. It requires that a report of each
abortion performed be made to the Idaho Department of Health and Welfare. These
reports do not identify the individual patient by name. They would include the identity of
the physician who performed the abortion, the second physician as required by
subsection 18-616(B), the pathologist as required by subsection 18-616(C), the facility
where the abortion was performed and the referring physician’s agency or service, if any;
the county and state in which the woman resides; the woman’s age; the number of prior
pregnancies and prior abortions of the woman; the viability and gestational age of the
unborn child at the time of the abortion, including tests and examinations and the results
thereof upon which the viability determination has been made; the type of procedure
performed or prescribed and the date of the abortion; preexisting medical conditions of
the woman which would complicate pregnancy, if any, and if known, any medical
complication which resulted from the abortion itself; if applicable, the basis for the
medical judgment of the physician who performed the abortion that the abortion was
necessary to prevent either the death of the pregnant woman or the substantial and
irreversible impairment of a major bodily function of the woman; the weight of the
aborted child; the basis for any medical judgment that a medical emergency existed
which excused the physician from compliance with any provision in the chapter; and
whether the abortion was performed upon a married woman. In addition, every facility in
which an abortion is performed within the state must file with the department a report
showing the total number of abortions performed within the facility during that quarter
year. This report must also show the total abortions performed during the quarter
according to each trimester of pregnancy. If the facility receives public funds, this report
is available for public inspection and copying.

These reporting requirements are similar to the requirements at issue in Planned
Parenthood v. Casey. The reporting requirements at issue in Casey were upheld by the
United States Supreme Court against a federal constitutional challenge with one narrow
exception. The statute in Casey contained a requirement, at subsection 12, that the
facility report whether the abortion “was performed upon a married woman and, if so,
whether notice to her spouse was given.” If no notice to her spouse was given, the report
was also to “indicate the reason for the failure to provide notice.” The Supreme Court
invalidated this provision because it required a woman, as a condition of obtaining an
abortion, to provide the state with the precise information that, as the court had already
recognized, many women have “pressing reasons not to reveal.” This draft bill has
essentially included the first part of subsection 12, “whether the abortion was performed
upon a married woman,” but deleted the second part of that subsection, whether the
married woman gave notice to her spouse and, if not, why. While the Court focused
upon only a portion of subsection 12, it bears noting that the Court’s holding may have
invalidated all of that subsection.
Further, when the Third Circuit Court of Appeals reviewed the reporting
requirements in Casey, it noted that the reports were “concededly confidential.” Planned
Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682, 716 (3rd Cir. 1991). It
also noted that the United States Supreme Court had struck down similar reporting
requirements because they were not confidential in that they made public information
about both the woman and about her physician. Id. at n.29. It is not clear whether these
reports are intended to be made available to the public. Under existing law, the reports
would probably be exempt from disclosure pursuant to Idaho Code § 9-340(3)(m) of the
Public Records Act. However, the drafters may want to clarify this issue to avoid
possible constitutional problems.4
B.

Partial Birth Abortion Prohibition

The next draft bill this opinion will address is RS 07503, which prohibits partial
birth abortions unless the woman’s life is endangered. Pursuant to the draft bill, a
physician who performs a partial birth abortion would be subject to felony prosecution
and civil liability. The bill defines partial birth abortion as an abortion “in which the
person performing the abortion partially vaginally delivers a living fetus, or a substantial
portion of the fetus, for the purpose of performing a procedure the physician knows will
kill the fetus, and which kills the fetus.”
Partial birth abortion bans are a recent development in the abortion law area.
Approximately 17 states have sought to ban these types of abortions. There have been
several judicial challenges which have successfully enjoined the bans or had them
declared unconstitutional.

“Partial birth abortion” is not a medical term. Usually, what legislators seek to
ban when using this term is what is called a dilation and extraction (D&X) abortion.
However, these bans have been construed to also encompass a dilation and evacuation
(D&E) abortion. See Women’s Medical Professional Corporation v. Voinovich, supra.
The D&E procedure is the most common method of abortion in the second trimester.
The D&X procedure, while apparently less common, is also sometimes used in the
second trimester. In addition, partial birth abortion bans have been construed to ban the
induction method of abortion. See Planned Parenthood of Southern Arizona, Inc. v.
Woods, No. 97-385-TUC-RMB, 1997 WL 679921 (D. Ariz. Oct. 27, 1997).
Courts reviewing partial birth abortion bans have invalidated them primarily on
the grounds that they potentially endanger the woman’s health. Courts have reasoned
that a particular abortion procedure cannot be banned if the alternative method would
increase the health risks to the mother. See, e.g., Voinovich, supra, and Carhart v.
Stenberg, 972 F. Supp. 507 (D. Neb. 1997). Courts have also invalidated these bans on
the theory that they are void for vagueness and overbroad. See Woods, supra, and Evans
v. Kelley, 977 F. Supp. 1283 (E.D. Mich. 1997). These courts have concluded that it is
not clear precisely what type of abortion procedure is being banned, and, therefore,
physicians are not given fair notice regarding what is prohibited. As noted above, Ohio
is seeking Supreme Court review of the Sixth Circuit Court of Appeals opinion striking
down Ohio’s law. The Supreme Court has not yet granted or denied review.
Idaho is in the Ninth Circuit, which is more likely than other circuits to follow a
rationale similar to that applied by the Sixth Circuit. Consequently, particular attention
should be paid to the Sixth Circuit opinion.
C.

Parental Consent to Abortion

The third draft bill this opinion will address is entitled “Parental Consent To
Abortion.” This draft bill requires that before a physician performs an abortion on an
unemancipated minor, the physician must secure the written consent of one parent of the
minor. In addition, the consent of a guardian or conservator must be secured if one has
been appointed because the pregnant woman has been found disabled, incapacitated or
mentally ill pursuant to title 15, chapter 5, or title 66, chapter 3, Idaho Code. The draft
bill contains a judicial bypass provision, criminal and civil penalties and recordkeeping
and reporting requirements.
As discussed, the United States Supreme Court has upheld one-parent consent
requirements. This draft bill, however, also appears to apply to adult women who have
been found disabled, incapacitated or mentally ill and for whom a guardian or
conservator has been appointed. Research discloses little precedent on this specific issue.
Usually, legal cases involving a pregnant disabled, incapacitated or mentally ill woman
entail an effort by a third party to sterilize the woman or force an abortion, rather than a

situation where the woman might seek an abortion while her legal guardian or
conservator objects. See Lefebvre v. North Broward Hospital District, 566 So. 2d 568
(Fla. Ct. App. 1990) (trial court authorization allowing hospital to terminate pregnancy
over mental patient’s objection reversed). A court might not view a child and an adult
woman who is incapacitated, disabled or mentally ill as being in identical situations.
Title 66, chapter 3 may be particularly problematic. Under title 66, chapter 3, a court can
find a woman “lacks capacity” if, because of her mental illness, she is not able to make
an informed decision about treatment for her mental illness. See Idaho Code § 66-317(i).
However, this woman may not have been adjudicated as incompetent. An incompetency
adjudication is an entirely separate proceeding. See Idaho Code § 66-355. Idaho Code
§ 66-322 provides for the “appointment of [a] guardian for individuals lacking capacity
to make informed decisions about treatment,” and gives this guardian the narrow
authority to “consent to treatment, including treatment at a facility.” Idaho Code § 66322(j). Idaho Code § 66-346 provides that mental patients retain all “civil rights . . .
unless limited by prior court order.” If this draft bill were enacted and judicially
challenged, a court might be troubled by the prospect of a woman who has been found
lacking capacity for the narrow purpose of making decisions about her treatment for a
mental illness being required to obtain a guardian’s consent or to seek judicial
authorization before she can exercise her right to end a pregnancy.
The draft bill provides for a judicial bypass. The United States Supreme Court has
held that a judicial bypass provision must meet four criteria: (i) allow the minor to bypass
the consent requirement if she establishes that she is mature enough and well enough
informed to make the abortion decision independently; (ii) allow the minor to bypass the
consent requirement if she establishes that the abortion would be in her best interests; (iii)
ensure the minor’s anonymity; and (iv) provide for expeditious bypass procedures. See
Lambert v. Wicklund, — U. S. —, 117 S. Ct. 1169, 137 L. Ed. 2d 464 (1997).
The bypass provision in this draft bill is modeled upon the one upheld in Hodgson
v. Minnesota, 497 U.S. 417, 110 S. Ct. 2926, 111 L. Ed. 2d 344 (1990). Under the
bypass provision a judge “shall” authorize the abortion without parental consent if the
judge concludes that that pregnant female is mature and capable of giving informed
consent or the judge determines the abortion without parental consent would be in her
best interests. The pregnant female may participate in the proceedings and she has the
right to court-appointed counsel. The proceedings in court are confidential and the
pregnant female has the right to an expedited confidential appeal if her petition is denied.
Further, “to protect the identities of persons involved, records contained in court files
regarding judicial proceedings . . . are exempt from disclosure pursuant to section 9340D, Idaho Code.”5 No filing fees are required of the pregnant female at the trial or at
the appellate level.
Generally, this bypass procedure appears sound. One minor point concerns the
expediency of the hearings. The draft bill provides that the proceedings shall be “given

precedence” over other pending matters and that the judge shall render his decision
“promptly.” It goes on to provide for an “expedited” appeal. Further, the bill provides
that access to the courts “shall be afforded the pregnant female twenty-four (24) hours a
day, seven (7) days a week.” However, the bill does not contain a specific time frame
within which the courts must conduct hearings and render their decisions. The judicial
bypass provision upheld in Hodgson also did not contain specific time frames, but it
provided not only that the judge had to reach a decision promptly, but also that it had to
be “without delay.” Since Hodgson, one appellate court has held that a bypass procedure
that allowed for “summary proceedings,” but which did not set forth a specific timetable
did not meet constitutional requirements. See Causeway Medical Suite v. Ieyoub, 109
F.3d 1096 (5th Cir. 1997). The court in this case cited an earlier Ninth Circuit opinion,
Glick v. McKay, 937 F.2d 434 (9th Cir. 1991), as authority. Glick v. McKay has since
been criticized by the Supreme Court on other grounds. See Wicklund, supra.
Regardless, because Idaho is situated in the Ninth Circuit, it would do no harm to add a
specific timetable.
The draft bill further provides that “performance of an abortion in knowing or
reckless violation of this act shall be a misdemeanor and shall be grounds for a civil
action by a person wrongfully denied the right to consent.” The draft bill does not
specify precisely who would be liable—the physician or also his or her agents. I mention
this because in a recent title challenge to an abortion initiative, the Idaho Supreme Court
interpreted a provision that stated that the “mother, the father (and if the mother or father
has not attained the age of 18 at the time of the abortion, any parent of such minor), may
in a civil action obtain appropriate relief.” Matter of Writ of Prohibition, 128 Idaho 266,
269, 912 P.2d 634, 637 (1995). The Idaho Supreme Court construed this provision as
allowing for a civil action against anyone who violated the terms of the initiative, not just
the “medical abortion provider.” If the drafters intended to limit liability to the
physician, it would be well to specify this.
I would also briefly note that the draft bill does not place any limit on the amount
of civil damages which may be recovered. Further, under its terms, it would seem that a
guardian or conservator, as well as a parent, could initiate a civil suit. Considering the
admonishment from appellate courts since Casey that states not “chill” the willingness of
physicians to perform abortions, these are details that the drafters of this bill may want to
consider adding.
The draft bill also provides reporting requirements. As noted, in Casey, the
Supreme Court upheld reasonable reporting requirements that protected the identity of
the woman. Further, as discussed above, there is some precedent for the proposition that
the identity of the physician should be protected from public disclosure as well. This
draft bill shields the identity of the woman. While the physician’s identity can
undoubtedly be required on a reporting form submitted to the state, there may be
constitutional problems if the physician’s identity is then revealed to the public. This bill

does not appear to require that the physicians’ names be protected by the department
when the department compiles statistical data available for public inspection. Again, the
Public Records Act may protect the physician’s name, Idaho Code § 9-340(3)(m), but
this issue could be clarified.6
Question No. 4:
Your final question concerns the Idaho Constitution. You have asked whether the
Idaho Constitution creates any rights or limits that pertain to the state’s ability to regulate
abortion.
This office, in its 1993 Attorney General Opinion, touched briefly on this issue,
discussing whether the Idaho Supreme Court might construe the Idaho Constitution as
being more restrictive of the legislature’s ability to enact abortion legislation than the
federal Constitution has been construed to be. The Idaho Supreme Court has held that it
may afford citizens greater protection under the Idaho Constitution than is afforded under
the United States Constitution. See, e.g., State v. Guzman, 122 Idaho 981, 842 P.2d 660
(1992). Since the Casey decision was issued, there have been several state supreme
courts that have construed their state constitutions as providing broader abortion rights,
and, consequently, less legislative discretion, than does the United States Constitution.
For example, the California Supreme Court has held that a statute requiring a pregnant
minor to secure parental consent or judicial authorization before obtaining an abortion
violates the right of privacy guaranteed by the California Constitution. American
Academy of Pediatrics v. Lungren, 940 P.2d 797 (Cal. 1997). The Supreme Court of
Minnesota has held that medical assistance and general assistance statutes that permit the
use of public funds for child-related medical services, but prohibit similar use of public
funds for medical services related to therapeutic abortions impermissibly infringe on a
woman’s fundamental right of privacy under the Minnesota Constitution. See Women of
the State of Minnesota v. Gomez, 542 N.W.2d 17 (Minn. 1995). However, there are
other states which have not followed this course. For example, in Mahaffey v. Attorney
General, 564 N.W.2d 104 (Mich. Ct. App. 1997), the Court of Appeals of Michigan held
that the Michigan Constitution does not guarantee a right to abortion that is separate and
distinct from the federal right.
These cases highlight the point that the Idaho Supreme Court, should an abortion
issue be raised before it, will not necessarily conclude that it must follow federal
precedent. I note that one state district court judge, when addressing an abortion issue,
held that the Idaho Constitution provides “broader protection than the federal
constitution.” See Roe v. Harris, No. 96977 (Idaho Fourth District for Ada County, Feb.
1, 1994). Whether the Idaho Supreme Court would reach the same conclusion remains
an open question.

AUTHORITIES CONSIDERED
1.

Idaho Code:
§ 9-340(3)(m).
Title 15, chapter 5.
§ 18-601, et seq.
§ 18-604(6).
§ 18-604(7).
§ 18-605.
§ 18-608.
§ 18-608(2).
§ 18-608(3).
§ 18-609.
§ 18-609(2).
§ 18-609(3).
§ 18-609(4).
§ 18-609(6).
§ 18-1609(3).
§ 39-3801.
§ 39-4302.
Title 66, chapter 3.
§ 66-317(i).
§ 66-322.
§ 66-322(j).
§ 66-346.
§ 66-355.
§ 67-1401.
§ 67-1401(7).

2.

Idaho Cases:
Bon Appetit Gourmet Foods, Inc. v. State, Dept. of Employment, 117 Idaho 1002,
793 P.2d 675 (1989).
Matter of Writ of Prohibition, 128 Idaho 266, 912 P.2d 634 (1995).
Roe v. Harris, No. 96977 (Idaho Fourth District for Ada County, Feb. 1, 1994).
State v. Guzman, 122 Idaho 981, 842 P.2d 660 (1992).

3.

Federal Cases:
Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S. Ct.
2481, 76 L. Ed. 2d 687 (1983).
Barnes v. State of Mississippi, 992 F.2d 1335 (5th Cir.), cert. denied, 510 U.S.
976, 114 S. Ct. 468, 126 L. Ed. 2d 419 (1993).
Carhart v. Stenberg, 972 F. Supp. 507 (D. Neb. 1997).
Causeway Medical Suite v. Ieyoub, 109 F.3d 1096 (5th Cir. 1997).
Evans v. Kelley, 977 F. Supp. 1283 (E.D. Mich. 1997).
Glick v. McKay, 937 F.2d 434 (9th Cir. 1991).
Hodgson v. Minnesota, 497 U.S. 417, 110 S. Ct. 2926, 111 L. Ed. 2d 344 (1990).
Lambert v. Wicklund, — U. S. —, 117 S. Ct. 1169, 137 L. Ed. 2d 464 (1997).
Planned Parenthood Ass’n of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S.
476, 103 S. Ct. 2517, 76 L. Ed. 2d 733 (1983).
Planned Parenthood Ass’n of Kansas City, Missouri, Inc. v. Ashcroft, 655 F.2d
848 (8th Cir. 1981).
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.
Ct. 2791, 120 L. Ed. 2d 674 (1992).
Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682 (3rd
Cir. 1991).
Planned Parenthood of Southern Arizona, Inc. v. Woods, No. 97-385-TUC-RMB,
1997 WL 679921 (D. Ariz. Oct. 27, 1997).
Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452 (8th Cir. 1995),
cert. denied, — U.S. —, 116 S. Ct. 1582, 134 L. Ed. 2d 679 (1996).
Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).
Webster v. Reproductive Health Services, 492 U.S. 490, 109 S. Ct. 3040, 106 L.
Ed. 2d 410 (1989).

Women’s Medical Professional Corporation v. Voinovich, 130 F.3d 187 (6th Cir.
1997).
4.

Other Cases:
American Academy of Pediatrics v. Lungren, 940 P.2d 797 (Cal. 1997).
Lefebvre v. North Broward Hospital District, 566 So. 2d 568 (Fla. Ct. App. 1990).
Mahaffey v. Attorney General, 564 N.W.2d 104 (Mich. Ct. App. 1997).
Planned Parenthood League of Massachusetts, Inc. v. Attorney General, 677
N.E.2d 101 (Mass. 1997).
Women of the State of Minnesota v. Gomez, 542 N.W.2d 17 (Minn. 1995).

5.

Other Authorities:
1993 Idaho Att’y Gen. Ann. Rpt. 5.
IDAPA 16.02.08.451.
Dated this 26th day of January, 1998.
Sincerely,
ALAN G. LANCE
Idaho Attorney General

Analysis by:
MARGARET R. HUGHES
Deputy Attorney General
WILLIAM A. VON TAGEN
Deputy Attorney General
1

Because this is an important constitutional issue which needs to be resolved one way or the
other by the United States Supreme Court, this office is joining in an amicus effort by the state of Arizona
asking the Supreme Court to resolve the issue.

2

This office notes that it has never been contacted to prosecute an individual under the statutes
which carry criminal penalties.
3

It is absolutely imperative that any bypass procedure protect the confidentiality of the minor.
Lambert v. Wicklund, — U. S. —, 117 S. Ct. 1169, 137 L. Ed. 2d 464 (1997). The draft bill provides that
the minor shall file her petition in the judicial bypass proceeding using her initials. While language
similar to that contained in this draft bill was upheld in Planned Parenthood Ass’n of Kansas City,
Missouri, Inc. v. Ashcroft, 462 U.S. 476, 103 S. Ct. 2517, 76 L. Ed. 2d 733 (1983), it might be well to
specify within the draft bill that both the trial and appellate procedures must be confidential and that court
documents are not public records. In addition, for purposes of further clarification, the drafters may want
to define what is meant by “notice” in Section III, specifically, (6)(b)(i). An earlier version of the statute
at issue in Ashcroft contained a provision that notice be provided to the minor’s parents regarding the
bypass hearing. This provision was struck down by the Eighth Circuit in Planned Parenthood Ass’n of
Kansas City, Missouri, Inc. v. Ashcroft, 655 F.2d 848, 874 (8th Cir. 1981), and the state of Missouri did
not raise this issue on appeal and appears to have dropped that provision in its current statute. Bearing in
mind the origins of the word “notice,” clarification by the drafters might be considered.
4

Current rules promulgated by the Department of Health and Welfare protect a physician’s
identity when reports of “induced abortion” are released for public use. IDAPA 16.02.08.451. The draft
bill does not provide whether the department should continue this confidentiality policy with regard to the
reporting requirements contained in the draft bill.
5

Proposed section 39-1704(3) appears to include a typographical error. The drafters may have
intended just 9-340, or some other specific section under that statute.
6

This opinion notes one final issue regarding both the draft bills which require parental consent.
Idaho does not require parental consent for medical treatment for minors “14 years of age or older” who
may have come into contact with infectious, contagious or communicable disease that are required by law
to be reported to the local health officer. See Idaho Code § 39-3801. Idaho Code § 39-4302 allows
persons to consent to their own care if they are of “ordinary intelligence and awareness sufficient for him
or her generally to comprehend the need for, the nature of and the significant risks ordinarily inherent in
any contemplated hospital, medical, dental or surgical care, treatment or procedure.” The code does not
appear to require that minors obtain parental consent prior to medical procedures. The United States
Supreme Court has never held that a state must require parental consent for other medical procedures
before it can require a one-parent consent to an abortion procedure. Nevertheless, if a challenge were
made based on the Idaho Constitution, a court, should it construe the Idaho Constitution more broadly
than the U.S. Constitution (see discussion below), could find this distinction relevant.