Abortion-Ban Measure Too Broad, Opinion Says Bill To Outlaw Partial-Birth Method Likely Unconstitutional

In a new legal opinion released Thursday, the Idaho Attorney General’s Office says a bill that targets so-called partial-birth abortions is almost certainly unconstitutional.

The bill is scheduled for a final House vote Monday. It won the support of the House State Affairs Committee on a 17-4 vote earlier this week despite warnings that its language was overly broad.

The opinion, requested by Sens. Mel Richardson, R-Idaho Falls, and John Sandy, R-Hagerman, says near-identical language was struck down in two states, Nebraska and Arizona.

It also says the language in HB576 goes much further than that in an Ohio case that is being appealed to the U.S. Supreme Court.

If the Idaho bill were enacted and courts followed the reasoning they did in the Ohio case, “The bill would probably be struck down,” the opinion stated.

Sponsored by Rep. Dan Mader, R-Genesee, and Right to Life of Idaho, the measure is billed as restricting a specific late-term abortion procedure that the sponsors say borders on infanticide. But the opinion notes that even the more specific Ohio language was found to be broad enough to cover other abortion procedures.

Critics of the Idaho bill say its definition of the procedure is so broad it could apply to virtually any abortion. The bill calls for doctors to go to prison for two to five years if they violate its provisions.

The new opinion also pointed to another constitutional problem in the bill: A doctor who acts in good faith and exercises his or her medical judgment that a procedure is necessary to save a woman’s life is still guilty of a crime if that judgment is second-guessed.

The bill allows the abortion only if the mother’s life is threatened.

“This potential criminal liability, even where the physician had acted in good faith, could have an unconstitutional chilling effect on the willingness of physicians to perform abortions,” the opinion said.

The opinion was distributed to both sides on Thursday but was dated Feb. 9.

No explanation was offered for why it wasn’t released before the committee hearing on the bill.

, DataTimes