Last weekend, Kempthorne, a Republican, signed a bill prohibiting state Medicare funding of abortions required to protect the health of the mother. By signing House Bill 309, Kempthorne flies in the face of Roe v. Wade, making it essentially impossible for poor women in his state to have abortions, even if their own health depends on having the procedure.
The new law finishes what federal restrictions began long ago. In 1977, Congress passed the Hyde amendment, banning the use of federal Medicaid dollars for abortions, except in cases of rape, incest or if the mother's life is at risk. Since then, states have enjoyed a certain degree of freedom when they move to restrict state Medicare funding of abortions.
But women in particularly restrictive states have fought back, challenging laws in court under their state constitutions, charging the state with discrimination. And they've been pretty successful: According to the Alan Guttmacher Institute, while only 13 states allowed state funds to be used to finance abortions in 1992, today that number has risen to 19, thanks primarily to constitutional challenges.
"There are two trends at work here," says Rachel Roth, assistant professor of political science at Washington University in St. Louis. "First, we see the increasingly restrictive nature of the Hyde amendment as it's adapted by individual states. But we're also seeing that second trend: Women reacting to those restrictions and forcing the courts to make a decision."
Idaho's new law is widely expected to be challenged in Idaho's Supreme Court. In 1994, a federal judge reviewed state legislation containing identical guidelines and ruled it unconstitutional. And because it addresses the question of access, which, says Roth, is fast becoming the central issue of the modern abortion debate, the new legislation could even make its way to the U.S. Supreme Court.
"Abortion is legal, but for more and more women it's becoming impossible to find the money to have one, or a doctor willing to provide them, or a clinic that's not under the threat of violence," says Roth. In other words: Access is everything. And pro-choice activists are poised for a fight. Because although Roe v. Wade ostensibly guarantees the right to a legal abortion, the letter of the law hardly matters if states are permitted to chip away at the practical structures that support a woman's right to choose.