Parental consent abortion law overturned

BOISE – A federal appeals court on Friday threw out Idaho’s parental consent abortion law, ruling that its emergency health exception was constitutionally inadequate.

“In regulating the performance of abortions on minors, Idaho has acted in pursuit of legitimate interests,” the three-judge panel of the 9th U.S. Circuit Court of Appeals said. “The vehicle it has chosen to further those interests, however, fails to provide sufficient access to an abortion for minor women whose life or health necessitate one.”

The 65-page ruling reverses the December 2001 order by U.S. Magistrate Mikel Williams, who upheld key provisions of the law passed in 2000 and modified slightly the following winter.

“We always believed that this law is unconstitutional,” said Rebecca Poedy, executive director of Planned Parenthood of Idaho, which challenged the law with a Boise doctor who performs abortions. North Idaho has no abortion providers, and Idaho’s teen abortion rate is the sixth-lowest in the country.

Republican state Rep. Bill Sali of Kuna, the chairman of the House Health and Welfare Committee and an ardent abortion opponent, said the legal battle was not over.

“We went into this believing we would lose at the 9th Circuit and hopefully prevail on appeal to the U.S. Supreme Court,” Sali said.

But Michael Journee, spokesman for Gov. Dirk Kempthorne who signed the parental consent bill into law, said neither the governor nor his attorney has reviewed the ruling, and no decisions have been made about whether further appeals should be pursued.

The consent law was similar to one lawmakers passed in 1998, only to see it vetoed by then-GOP Gov. Phil Batt, who said he thought the bill would do more harm than good. Lawmakers passed a modified version with Kempthorne’s support in 2000.

The bill banned abortions for girls under 18 without a parent’s consent, but allowed those who can’t go to their parents to appeal to a judge, within limited circumstances.

In the 2001 ruling, Williams threw out the law’s restrictions on which court locations minors could go to for judicial consent when parental consent was not possible. He also threw out the requirement that parents be notified within 24 hours of an abortion performed under the medical emergency provisions.

But he upheld the law’s medical emergency scheme, ruling that the definition of medical emergency was broad enough to protect constitutional rights. Williams also said that criminal sanctions against doctors were restricted sufficiently to avoid infringing on their constitutional protections.

The appellate panel disagreed. Judge Marsha Berzon, writing for the court, said there was no reasonable explanation for limiting medical emergency abortions to “sudden and unexpected” instances of physical complications. Doctors are permitted to perform other procedures on minors in emergencies that do not fit in the category of “sudden and unexpected.”

“The importance of protecting a pregnant woman’s life and health cannot be overstated,” Berzon wrote.

“Once a medical condition exists, the constitutional inevitability of an abortion defeats the state’s interests in potential life, making it extremely likely that any regulation that affects the procedure, even if the procedure can eventually go forward, is unduly burdensome in light of the state’s limited interests,” she wrote.

The court also said that considering how integral the medical emergency provisions were to the entire law, there was no way to salvage any part of the statute.

Abortions in Idaho have decreased significantly since 1980, when 2,553 were performed. In 1990 the number was down to 1,390, and it nearly halved again by 2001 when there were 738, according to statistics compiled by the Department of Health and Welfare.

Only four doctors perform abortions in Idaho – one in the Pocatello area and three in Boise.

Poedy said the procedure in the Idaho law for obtaining judicial consent in cases where children fear they cannot approach their parents on the issue has been used on a number of occasions since 2001, but there are no figures on how many times that occurred around the state.