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Idaho House passes bills on free speech, abortion

April 16, 2021 Updated Fri., April 16, 2021 at 9:37 p.m.

Idaho Speaker of the House Rep. Scott Bedke talks on the phone on the House floor during the 2021 regular legislative session at the Idaho State Capitol. Bedke did not respond to a request for comment regarding the threat of an Idaho government shutdown.  (Brian Myrick/Idaho Press)
Idaho Speaker of the House Rep. Scott Bedke talks on the phone on the House floor during the 2021 regular legislative session at the Idaho State Capitol. Bedke did not respond to a request for comment regarding the threat of an Idaho government shutdown. (Brian Myrick/Idaho Press)
By Besty Z. Russell Idaho Press

BOISE – The Idaho House on Friday passed bills on campus free speech, abortion and more, but made no firm steps forward in its deadlock over education funding bills caught up in a dispute about “social justice indoctrination.”

The House Ways & Means Committee met Friday morning, and discussed a proposed bill from Rep. Greg Chaney, R-Caldwell, on “Ideological Freedom, Education.” The measure was designed to allay fears from some House Republicans, urged on by the Idaho Freedom Foundation, that Idaho’s public schools and colleges are attempting to indoctrinate students with leftist political ideologies, particularly around race and “social justice.”

Chaney told the committee his proposal would address “divisive concepts” in both K-12 public schools and higher education.

“There’s been a lot of controversy around certain areas of instruction. While there is certainly 1st Amendment rights to discuss certain things, there are also competing rights against the government compelling speech,” he said. “This seeks to recognize the rights of academics to discuss difficult topics, perhaps topics and conversations that need to happen, and the rights of students to not be compelled to adhere to an ideology or point of view to which they do not agree.”

The bill would define “divisive concepts,” including a long list of items pertaining to race, racism and sexism, and forbid teaching them in grades K-8. It would allow them to be taught in grades 9-12 and higher education, as long as “viewpoint neutrality” is maintained in the teaching. Violations could be pursued under the Idaho Tort Claims Act.

“The intention is that this act would never be invoked, but merely ensure freedom of viewpoint in these discussions,” Chaney said.

Rep. Jason Monks, R-Meridian, asked, “So would this apply to organizations that may receive grants that the state allocates, meaning Pre-K?”

Chaney said only if they meet the definition of school districts.

Monks then asked if the committee could delay introducing the bill and have more discussions to see if something could be included about Pre-K grants as well. “I’m trying to get to our issue that we had with other bills here, and see if we could address that at the same time,” he said.

House Speaker Scott Bedke said, “Yeah. I think it’s prudent that we make informed and in-depth decisions from this point forward in the session.”

A scheduled noon meeting of the House Education Committee to consider the new bill was then canceled; and late Friday, a Ways & Means Committee meeting was set for Monday at 9 a.m. on a new proposed bill from Rep. Julianne Young, R-Blackfoot, on “State Budget, Education.”

Bedke told the Idaho Press “In consultation with the Senate, basically, we’re going to do some redrafting and hopefully have something that can go in both sides by Monday morning.” He said he was optimistic that the proposal could ease the way for the House to pass the stalled budget bills for public schools and higher education.

“Our whole education system, its core mission is to turn out educated young adults that can go and compete and get good jobs so they can support themselves and their families,” Bedke said. “And anything that detracts from that mission is outside of the core values.”

He downplayed the role of the Idaho Freedom Foundation, which opposes education funding and has been lobbying against “critical race theory” and “social justice” indoctrination it claims are occurring in Idaho’s schools and colleges.

“Their purposes are not the legislative purposes,” Bedke said. “If we get outside the core mission, then we need to get back inside the core mission, both K-12 and higher education.”

The Senate was on recess, waiting for the House to catch up on the budget issues. The legislative session has now stretched considerably longer than planned, only in part because of an 18-day recess forced by a COVID-19 outbreak, from which one House staffer remains hospitalized.

Bedke said, “I’m still very optimistic we are done in April.”

Here are some of the other actions from the Legislature on Friday:

Free spech bill

The House voted 56-12 in favor of HB 362, Rep. Barbara Ehardt’s bill to require additional free-speech protections on Idaho college and university campuses. It was a near-party-line vote, with all but one of the House Democrats and Rep. Dustin Manwaring, R-Pocatello, voting no, and all House Republicans who were present plus Rep. Colin Nash, D-Boise, voting yes.

Ehardt calls her bill the “Protecting Critical Thinking in Higher Education Act.” It’s aimed at protecting the right of college students to express their views on campus; it also would allow anyone who feels their rights have been violated to sue a college or university for $5,000 in damages, and would require public colleges and universities in Idaho to submit reports to the governor and the Legislature on issues that come up each year.

“These campuses have essentially established their own speech codes, their own speech zones,” Ehardt told the House. “They essentially have felt, and this is not just in Idaho but throughout the nation, that it is their right as an institution, even a public institution of higher education, to determine what can and cannot be said.”

She said she’s most concerned about students being harassed or “shut down” for expressing their views because others are offended. “To me, the most egregious place is when it’s shut down in classrooms by a professor,” she said. She added the legislation has been passed in 17 states and elsewhere has bipartisan support.

“The legislation essentially codifies the First Amendment, so to speak,” she said.

Rep. James Ruchti, D-Pocatello, an attorney, said the bill “really just makes it easier to file lawsuits against universities,” and unlike most Idaho laws, sets a minimum level of damages. “It’s going to tie up employees in having to do investigations and handle these lawsuits. It’s just not good government,” he said.

‘Heartbeat’ bill

After a long and impassioned debate, the House on Friday passed HB 366, the latest version of the “fetal heartbeat” anti-abortion bill, which seeks to ban abortions as soon as a fetal heartbeat can be detected. Similar legislation has been passed in 12 other states, but none has been upheld in court.

“We want to save baby lives,” sponsor Rep. Steven Harris, R-Meridian, told the House. “When does life begin? It begins at conception,” he said.

Under Roe vs. Wade, however, the U.S. Supreme Court precedent, abortion is legally permissible before fetal viability, roughly around 24 weeks into gestation. Through the use of an invasive transvaginal ultrasound, a fetal heartbeat can now be detected at as early as six weeks of gestation, before most women know they are pregnant.

“Our ultimate goal, of course, is to overturn Roe vs. Wade and make abortion illegal in Idaho and in the United States,” Harris told the House. “While we wait, we still want to save babies.”

The bill would take effect only if another state’s law was upheld by its federal Court of Appeals. Harris said the idea is Idaho’s law would then be challenged up to the 9th Circuit Court of Appeals, which likely would rule against it, creating the kind of split between circuits that would prompt U.S. Supreme Court review.

Debate against the bill came from both ends of the political spectrum. Rep. Heather Scott, R-Blanchard, decried the bill for including limited exemptions for cases of rape or incest if a police report is provided. “Why are we allowing the killing of babies just because of how they were made? It’s not right,” she said.

Rep. Chris Mathias, D-Boise, argued that the requirement for a police report ignores the fact that such a report likely wouldn’t be available until an investigation has concluded, as much as three months after the crime. “It’s mean, it’s incomprehensible, it’s inconsiderate, and mostly it’s unconstitutional,” Mathias told the House. “This bill is unconstitutional.”

Rep. Brent Crane, R-Nampa, said the bill would “establish viability when you can detect a beating heart.” He said, “You’re dead when you no longer have a heartbeat, so the inverse logic applies that you’re alive when you have a heartbeat. … This bill allows the question to be asked of the court, when does viability begin.”

Courts have defined viability as the point at which a fetus can survive independently, outside the womb.

Rep. Tammy Nichols, R-Middleton, tearfully described her difficult pregnancy with her fifth child, who is now a healthy 14-year-old girl “running circles around” her four older brothers. Nichols said she was offered an abortion but declined, and is so glad she made that decision that she worked to get this bill passed, starting last year.

Idaho already has a “trigger law” on the books that would ban abortion in the state if Roe vs. Wade is overturned.

To become law, HB 366 would need to clear a Senate committee, pass the full Senate, and receive the governor’s signature. An earlier version of the bill, SB 1183, passed the Senate April 6 on a 28-7 party-line vote.

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