Idaho Supreme Court approves revised abortion initiative language

BOISE — On Friday, the Idaho Supreme Court sided with Idahoans United for Women and Families in its argument that language pertaining to an abortion initiative on November's ballot was misleading, giving the state until 5 p.m. Saturday to submit revised language. The revisions were submitted on time, and the court on Sunday gave its OK, though approval wasn't universal. According to court documents, the new 'yes' vote language is as follows: 'A YES vote would support creating a right to abortion before fetal viability—defined as a fetus' ability to survive without extraordinary medical measures—and after fetal viability in cases of medical emergency; providing protections against professional discipline and civil and criminal liability for healthcare providers; and codifying a statutory reproductive right to freedom and privacy.' In writing for the majority, Justice Gregory W. Moeller said changes made to both 'yes' and 'no' statements are consistent with the court's prior opinion and, thus, comply with Idaho law. Justice Colleen Zahn agreed that the revised 'yes' statement was acceptable but that the new 'no' statement still failed the statutory requirement of being clear about the effect of a no vote. The 'no' vote language is as follows: 'A NO vote would support making no change to Idaho's current law, which preserves the life of preborn children by prohibiting abortion, except when necessary to prevent the death of the pregnant woman, and during the first trimester in documented cases of rape or incest reported to law enforcement.' In her dissent, Zahn took issue with the phrase 'preborn children,' arguing that this terminology doesn't appear in Idaho statutes directly addressing the legality of abortion, the statutory definition of abortion, the criminal provisions at issue, the revised 'yes' statement or the short and long ballot titles. 'This is significant because these other statements will appear on the same section of the ballot along with the revised No Statement,' Zahn wrote. 'I would conclude that the revised No Statement fails to clearly convey the effect of a 'no' vote because it uses different language than current Idaho law regulating abortion and uses different language than the revised Yes Statement and the short and long ballot titles that will appear on the same part of the ballot and therefore obscures the effect of a 'no' vote.' In addition, Zahn said 'no' statement gives an incomplete account of the laws that would remain in effect. 'A reasonable voter reading this statement could arguably infer two potential conclusions about the current state of Idaho law,' Zahn wrote. 'First, that current Idaho law provides for professional discipline and civil and criminal liability for healthcare providers. Second, that current Idaho law does not say anything about professional discipline and civil and criminal liability and the Initiative is seeking to 'head off' the potential future imposition of such liability. 'Either conclusion would be a reasonable inference. The No Statement's failure to specify which of these inferences is correct obscures the current state of Idaho law and therefore fails to clearly convey the effect of a 'no' vote.' This initiative will appear on the ballot as Proposition One. Election Day is Tuesday, Nov. 3.