Revised Abortion Initiative Refiled Alliance Believes Changes Will Meet Legal Objections

The Idaho Citizens Alliance resubmitted a revised anti-abortion initiative on Monday intended to meet the constitutional objections raised last month by Attorney General Alan Lance.

But the American Civil Liberties Union maintained there are still constitutional problems with the proposition.

The alliance also changed the name of its initiative to “The Mother and Prenatal Child Protection Act.” It had previously titled the proposition “Protection From Late Term Abortion Act.”

The initiative is just one of four on the social agenda being pressed by the alliance that was founded three years ago by Kelly Walton of Heyburn to promote anti-gay legislation.

In addition to an anti-gay initiative revised from the one that was narrowly rejected by voters last fall, Walton and the alliance are also promoting tax credits for parents teaching their children at home or sending them to private schools and legislation aimed at stripping the Idaho Education Association of its ability to represent Idaho’s public school teachers.

The revamped anti-abortion initiative changes the cutoff for legal abortions in Idaho from the 13th week of pregnancy to the point when a fetus is determined to be viable outside the womb, as defined by federal law and it would allow abortions after that period not just to save the life of the mother but to prevent her from suffering serious physical injury.

Those changes are intended to specifically bring the initiative into compliance with U.S. Supreme Court rulings that have held that states cannot ban abortions prior to the viability of the fetus, which is determined at this point to be the 21st week of pregnancy, and that require later abortions to be allowed to protect the health as well as the life of the mother.

But it is on that score that ACLU Director Jack Van Valkenburgh said the initiative falls constitutionally short. Van Valkenburgh contended that court rulings have defined health much more broadly than the protection from serious injury.

“Health is a medical term, it’s medical judgement,” he said. “It’s to be made by a doctor, not by the Legislature.”

The initiative also still subjects doctors to civil penalties for performing abortions that allegedly violate its proscriptions, and those penalties could be sought by third parties such as the woman’s parents, husband or the man who fathered the fetus.

The ACLU claims such a provision amounts to permitting third parties to interfere with a woman’s decision to obtain an abortion, which runs counter to court rulings.

In fact, the ACLU argued, “these actions could be maintained regardless of the consent of any party and would even give a cause of action to the perpetrator of rape or incest with the act results in a pregnancy and the woman seeks an abortion.”