Judge Blocks New Anti-Abortion Law Further Action May Depend On Outcome Of Arizona Case
A federal judge on Thursday blocked enforcement of Idaho’s new abortion ban in Ada County or by the state attorney general’s office.
But U.S. District Judge B. Lynn Winmill may defer action beyond a temporary restraining order until an Arizona case on a similar law is decided by the 9th U.S. Circuit Court of Appeals.
Supporters claim the new law, signed last week by Gov. Phil Batt, bans only a rarely used late-term procedure they call partial-birth abortion, even though they have stated publicly that there is no evidence the kind of abortion they have targeted has ever been performed in Idaho.
But courts in 13 other states have either blocked or voided identical or similar laws on grounds they were so broad they unconstitutionally banned nearly all abortions after the 13th week of pregnancy.
Winmill’s ruling means the new Idaho law cannot be enforced in Ada County, where all but one of the Idaho physicians performing abortions practice, and that the attorney general’s office cannot participate in enforcing the law anywhere in the state.
Other counties technically could enforce the law, but Winmill and a lawyer representing the American Civil Liberties Union and Planned Parenthood - which are plaintiffs in the case - agreed that his decision should be a “shot across the bow” of any prosecutors who try.
The next step after granting the temporary restraining order request from those challenging the law would be consideration of a preliminary injunction against it. But A. Stephen Hut Jr., the Washington, D.C., lawyer for the ACLU and Planned Parenthood, and Deputy Attorney General Michael Gilmore said they would consider letting Winmill’s ruling stand until a decision is reached on Arizona’s appeal of its similar abortion ban being struck down.
Thursday’s ruling came after Winmill rejected Gilmore’s arguments that the attorney general’s office should not be a defendant in the lawsuit challenging the law. He said Winmill had no jurisdiction because the 11th Amendment to the U.S. Constitution shields states from such federal cases.
“If the plaintiffs wish to sue the state, they can do so in state court,” Gilmore said.
But the judge said he had jurisdiction because there was a clear link between the attorney general’s enforcement authority and a state law potentially at odds with the U.S. Constitution.
Even though Attorney General Al Lance himself has questioned the constitutionality of the new law and has indicated he has no intention of assisting with its enforcement, Winmill said that could change.
Gilmore argued that a 1996 Idaho Supreme Court ruling made it clear the attorney general’s office has no power to initiate criminal prosecutions except in very limited instances. The authority generally is in the hands of county prosecutors, he said.
“The attorney general’s just out of the picture,” Gilmore said.
But Winmill said the governor could order the attorney general to assist with such a prosecution, county commissioners could seek the help or the attorney general might otherwise be forced to fill a prosecutorial vacuum “for political reasons or otherwise.”
xxxx WHAT’S NEXT The next step after granting the temporary restraining order request from those challenging the anti-abortion law would be consideration of a preliminary injunction against it. But lawyers in the case said they would consider letting Judge B. Lynn Winmill’s ruling stand until a decision is reached on Arizona’s appeal of a ruling against its abortion ban that is similar to Idaho’s.