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Shawn Vestal: Idaho legal battles a financial boon to liberal causes

Shawn Vestal (Dan Pelle / DAN PELLE)
Shawn Vestal (Dan Pelle / DAN PELLE)

Here’s a delicious conspiracy theory.

Idaho’s Constitutional Defense Fund – a taxpayer-funded account to pay for the state’s culture-war legal battles – is actually an elaborate, stealth operation to funnel money to organizations and attorneys supporting abortion, gay marriage and Occupy Boise. It is a secret strategy for Idaho lawmakers to finance the ACLU, Planned Parenthood and teachers unions.

Of course, Idaho isn’t actually funding those causes – it’s simply losing, over and over, in its court battles against them and being forced to cover their legal costs. Since it was formed in 1995, the Constitutional Defense Fund has paid out $2.1 million, “nearly all of it spent on losing legal battles,” according to reporting by Rebecca Boone of the Associated Press.

The fund was formed to pay for “defending the sovereignty of our state and our citizens,” in the words of Gov. Butch Otter. Idaho’s sovereignty needs a better defense. It has not funded a winning case since the first year after it was formed. Not one. Three times, Idaho has come up a loser in defending legislative efforts to expand abortion restrictions. Twice it was a loser on gay rights. It paid to defend a losing attempt to restrict Occupy Boise protests and political spending by the Pocatello Education Association. It forked out $70,000 as part of its losing effort to prevent a Navy veteran from being buried with her wife.

Back in August, when the state was signing almost $1 million worth of checks to opposition lawyers, Gov. Butch Otter said he had no idea why Idaho’s legal game was as weak as the Washington Generals.

“You’re going to have to ask the lawyers why we’re losing,” he said at the time. “But I can tell you that in every case, we were either defending statutes or our Constitution.”

Ask the lawyers. There’s an idea. Ask them – and then, you know, listen to them.

Obviously, legal minds will differ over the prospects of undecided cases. But Otter and Idaho lawmakers seem determined to head-butt their way through legal consensus and case law, ignoring warnings that their head-butting is futile. It’s almost as if they want to lose, so long as that means they can take up a righteous sword.

Take the matter of Idaho’s Pain-Capable Unborn Child Protection Act. This act – one of several attempts across the country by pro-lifers to find a crack in abortion rights by focusing on fetal pain – was proposed by lawmakers in early 2011. Among other things, it banned abortions after 20 weeks.

Idaho legislators asked for a legal evaluation of the measure from the state’s attorney general. On Feb. 14, 2011, the chief of the AG’s civil litigation division, Steven L. Olsen, delivered a 17-page analysis concluding that the act was unconstitutional. The analysis did not quibble: The act “is unconstitutional under the Fourteenth Amendment to the United States Constitution insofar as it proscribes some non-therapeutic abortions even before a fetus has reached viability.”

This is the bright line: U.S. law, built upon Supreme Court precedent, holds that the state cannot prohibit or impose an “undue burden” on a woman’s right to an abortion before the fetus is viable – before it can live outside the womb. Olsen’s analysis notes that viability is not a fixed stage, and “in at least a fair percentage of pregnancies today, the fetus is not viable by twenty weeks.”

Olsen also points out that the Legislature’s intent was clearly to change abortion doctrine, rather than abide by it, and cited previous rulings that such false-flag legal efforts had an “improper purpose” – basically, playing the system disingenuously in service of an ulterior motive.

Olsen’s interpretation begins to sound like a broken record: The act “plainly intends to erect a substantial obstacle to the right to choose.” The act “would thus impose an undue burden, and would be unconstitutional.” “There is strong reason to believe that (the act) is unconstitutional under existing precedent, as set forth below.” The act’s “purpose to erect a substantial obstacle to choice is apparent from the regulation’s manifest incompatibility with existing case law on abortion.”

Asked and answered. Idaho lawmakers passed the bill. When a Bannock County woman brought a lawsuit after she was prosecuted for ending a pregnancy with medication, a federal judge not only agreed with the Idaho attorney general’s office, he quoted Olsen’s review in ruling against the state.

“The Idaho legislature enacted the (law) in the face of the Idaho Attorney General’s declaration that it is likely unconstitutional … ” Judge B. Lynn Winmill wrote. “The Idaho legislature’s enactment of the (law) in light of this opinion is compelling evidence of the legislature’s ‘improper purpose’ in enacting it.”

Idaho appealed. The 9th U.S. Circuit Court of Appeals sided with Winmill in 2013, and it did so in language that once again precisely mirrored Olsen’s: “The panel held that (the law) … was facially unconstitutional because it categorically bans some abortions before viability.”

Idaho spent almost half a million on this fruitless and avoidable legal battle. Perhaps the Constitutional Defense Fund should be renamed the Lost Causes Account. Otter wants another million bucks for it, and ACLU attorneys must be ecstatic.

Ask the lawyers. Wonderful advice. But once you’ve asked and ignored them, you can no longer blame them.

Shawn Vestal can be reached at (509) 459-5431 or Follow him on Twitter at @vestal13.