“Idahoans need clear and concise information about a proposed ballot initiative’s fiscal impact and its purpose to decide whether to say yes or no at the ballot box — based on their understanding, and not on confusion,” said Anne Henderson Haws, an attorney with the law firm Holland & Hart, which is representing the abortion ballot initiative group. “The fiscal impact statement and the ballot titles prepared for the Reproductive Freedom and Privacy Act fail to meet these standards.”

State agencies defend the descriptions — which use “fetus viability” in one reference, and say the initiative will marginally raise state expenses. The agencies, which wrote the ballot titles and fiscal analysis, say they comply with state law.

“To the extent there’s a gap here, I think the gap between their definition and the term fetal variability is worlds larger than the gap between the term fetal viability and fetus viability,” said Idaho Solicitor General Alan Hurst, who works for the Idaho Attorney General’s Office. “And if the two terms are not synonymous — like if fetus favors us slightly, and fetal favors them slightly, which we don’t concede — then why is it that the one that’s in favor wins out, when the statutory standard is you’re not supposed to be either in favor or against?”

The ballot initiative proposes abortion exemptions to Idaho’s strict abortion ban laws for emergencies, fetal viability and other reproductive health protections.

The court will issue a decision at a later date.

In 2023, the Idaho Supreme Court ordered the Idaho Attorney General’s Office to rewrite ballot titles for an unsuccessful election reform ballot initiative, following a lawsuit.

Justices grilled AG attorney on using ‘fetus viability’ in ballot title

The ballot titles, developed by the Idaho Office of the Attorney General, are brief descriptions of the initiative.

The short title doesn’t say that the law would allow emergency abortions after viability, Idahoans United spokesperson Melanie Folwell previously told States Newsroom.

And the short title uses the term “fetus viability,” which is not the medical phrase, the initiative group argues. That conflicts with the long title’s use of the term “fetal viability,” the group argues.

Justices repeatedly asked Idaho’s solicitor general why the attorney general’s office used a different term than the initiative’s policy.

Hurst said the AG’s office believes fetal viability and fetus viability are essentially the same term.

At one point, Justice Robyn Brody questioned whether the language was meant to evoke the broader abortion debate.

Anti-abortion activists often call fetuses unborn children. But abortion-rights activists often frame abortion in terms of medical freedom for pregnant patients.

Hurst then referenced news writing standards by the Associated Press, a prominent international news wire outlet, that advise against using the terms “pro life” and “pro choice” in news articles.

“There are no neutral options here. To the extent the neutral options are here, its fetus viability — fetal viability,” Hurst replied. “That’s more favorable to their side than to ours. The AG has not used pro life language in this. He has done his utmost to use language that is consistent with the way the initiative frames things.”

Justice Cynthia Meyer soon pointed out that the Attorney General’s Office’s long title uses the term “life of the unborn child.”

Fiscal impact statement says initiative will marginally raise state costs. That’s also in dispute

The bigger issue is with the fiscal impact statement, Folwell previously told States Newsroom.

The fiscal impact statement says the initiative wouldn’t affect taxes or the state’s general fund, but it says the initiative could minorly affect state expenses — in Medicaid and prisoner populations.

“Passage of this initiative is likely to cost less than $20,000 per year. The Medicaid budget for providing services was about $850 million in FY2024,” the fiscal impact review said. “If passed, nominal costs in the context of the affected total budget are insignificant to the state.”

Initiative organizers argue that’s not true.

Justice Colleen Zahn pressed an attorney for Idahoans United on how the initiative wouldn’t raise costs, since Idaho pays for Medicaid patients who need care from complications from abortion pills.

“There’s no evidence that it would increase costs so as to increase any budget that doesn’t already exist,” Henderson Haws said.

The fiscal analysis was prepared by the Idaho Division of Financial Management, an agency overseen by Idaho Gov. Brad Little.

What is the Idaho abortion rights ballot initiative?

After filing four proposed policies in August, Idahoans United for Women and Families narrowed its focus down to one policy that would establish a fundamental right to contraception and fertility treatments under Idaho law.

That would include:

• in vitro fertilization

• making decisions about pregnancy and childbirth

• legalizing abortion before fetal viability; and

• preserving the right to abortion after viability in medical emergencies.

Under the proposed initiative, fetal viability would be determined by a physician and what treatment is available. In the medical community, viability is generally considered to be between 23 to 24 weeks of gestational age.

Initiative organizers are collecting signatures in the hopes of qualifying the initiative to be considered by Idaho voters in the November 2026 general election.

A ballot initiative is a proposed law that Idaho voters can approve or reject — independent of the Idaho Legislature. Only the Legislature can propose constitutional amendments, unlike many other states.

To pass, the initiative would require a simple majority support from voters.