January 27, 1998 in Nation/World

Lance Says Anti-Abortion Bill Has Legal Flaws Family Forum Will Make Minor Changes In Legislation, Then Move Full Speed Ahead, Lawmaker Promises

By The Spokesman-Review

Despite an unfavorable Idaho attorney general’s opinion Monday, anti-abortion activists are pushing forward with legislation to further restrict abortion in Idaho.

Rep. Jeff Alltus, R-Coeur d’Alene, said he expects the Idaho Family Forum’s anti-abortion legislation, which he is co-sponsoring, to go through some “minor changes,” then move “full speed ahead.”

He also predicted the Legislature’s willingness to act on abortion this year will open the door for future debates on moral issues.

“The mistaken feeling is out there that in 1990 the people who carried the abortion legislation lost their elections,” Alltus said. “I think if you get past that, that would be a big plus, because that is certainly the Legislature’s job, … the moral issues, to make those decisions.”

The Idaho Legislature hasn’t addressed abortion since the divisive 1990 session, when it passed the nation’s most stringent abortion law, only to see it vetoed by then-Gov. Cecil Andrus. In the next election, Democrats gained enough seats in the Senate to split the body 21-21.

Said Alltus, “I don’t think this body, who are the people who are chosen to come here and represent their constituents, should be afraid to debate any issue based upon what they think may happen in the next election. It’s just not right to be chicken.”

The lengthy legal opinion issued Monday by Attorney General Al Lance offered what Lance called “a cold and factual legal analysis.”

In an angry announcement as he presented the opinion, Lance said special interest groups on both sides had tried to pressure his office while the opinion was being written. “The office of the attorney general does not buckle to political pressure,” Lance said. “This is a first warning, and there will not be a second.”

The Idaho Family Forum, in a $3,000 ad campaign, blanketed radio airwaves throughout the Boise area last week with ads urging citizens to call their legislators or the attorney general’s office to support its legislation.

The ads, featuring a sweet-voiced woman and dreamy music in the background, say Idaho’s law is unconstitutional and the Family Forum’s bill “fixes this.”

Monday’s legal opinion blew some holes in that argument.

The legislation would fix some constitutional flaws, the opinion said, but it doesn’t address others. And the proposed legislation itself raises constitutional flaws.

The Attorney General’s opinion also said bans on so-called “partial-birth abortions” have been overturned in other states, “primarily on the ground that a woman cannot be required to use a different and potentially riskier procedure.”

Rather than rule flatly that the ban proposed this year by Sen. Stan Hawkins, R-Ucon, is unconstitutional, Lance said he’s decided to have Idaho join other states in calling for the U.S. Supreme Court to review an Ohio law, to get a definitive ruling.

If the nation’s highest court agrees to hear the case, Lance said, “That will provide a definitive answer in the not-too-distant future.”

Hawkins said Monday that he’ll meet with the bill’s supporters, Right to Life of Idaho, and possibly make changes. But he expects the bill to go forward.

The third piece of legislation reviewed, a parental consent bill jointly proposed by House Speaker Mike Simpson and the Idaho Christian Coalition, also was found to have some constitutional problems.

Simpson said Monday he’s completely rewriting his bill. He now plans to work on a section of Idaho law that requires parental consent for other medical procedures, and broaden it to include abortion. A procedure to allow a judge to over-ride the requirement would be added, and just one parent’s consent would be required.

The Family Forum’s bill requires both parents to consent. That was one of the flaws highlighted in the Attorney General’s opinion.

Dennis Mansfield, director of the Family Forum, said he intends to begin drafting the final version of his bill today. He also promised to reveal a list of more than two dozen legislative co-sponsors today.

Mansfield said he found encouraging signs in the new legal opinion, mainly because Lance acknowledged constitutional flaws in Idaho’s current abortion laws.

“I think today the attorney general showed us all that abortion is an issue,” he said.

Jack Van Valkenburgh, executive director of the Idaho ACLU, noted that a major constitutional flaw the opinion found in existing Idaho law - the lack of an exception from Idaho’s third-trimester abortion ban to protect the health of the mother - isn’t addressed by the Idaho Family Forum bill.

“It undermines, I think, their credibility to the extent that they are still acting like this is not an anti-abortion bill but just a pro-constitution bill,” Van Valkenburgh said.

Idaho’s law bans third-trimester abortions except to save the life of the mother or when the fetus will not survive.

Alltus said, “I don’t think anybody here is willing to open that can of worms.”

Alltus said he listened to the 1973 Roe vs. Wade oral arguments on CSPAN over the weekend, and he believes the landmark court ruling that legalized abortion was wrong.

“They made a big mistake - that’s my opinion, my un-legal opinion,” Alltus said.

“The decision they should have made is the Constitution doesn’t address this issue, it’s a states’ rights issue,” Alltus said. “The word ‘abortion’ is not in the Constitution.”

The three bills are likely to be presented to the House State Affairs Committee, which Alltus serves on, along with Reps. Jim Stoicheff, D-Sandpoint, and June Judd, D-St. Maries.

Stoicheff said, “I don’t see victory for one side or the other … I think it’ll be something that’ll tear people apart for the next 30 years, and I don’t think it’ll ever get resolved to anybody’s satisfaction.”

Judd said she wishes the issue wouldn’t be rehashed in the Legislature. “There are messages coming in already from people about the issue, and I’m sure there will be floods of them coming in.”

House Speaker Simpson said he thought that in light of the legal opinion, it was “unlikely” that the Legislature would pass a ban on “partial-birth” abortions until the courts’ position on the issue is clear.

“I think the Attorney General’s opinion would give anybody pause,” Simpson said. “I think they should take his comments into very serious consideration if they’re thinking about about bringing abortion legislation before the Legislature.”

, DataTimes MEMO: To see the full text of the Attorney General’s opinion on the Internet, go to www.state.id.us/ag/homepage.htm

To see the full text of the Attorney General’s opinion on the Internet, go to www.state.id.us/ag/homepage.htm

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