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Lawsuit challenges Idaho’s abortion “trigger” law

A Planned Parenthood affiliate on Monday filed a lawsuit in the Idaho Supreme Court to try to stop the state’s trigger law that effectively bans abortion. Several protests took place in Boise over the weekend.  (Sarah A. Miller/Idaho Statesman)
A Planned Parenthood affiliate on Monday filed a lawsuit in the Idaho Supreme Court to try to stop the state’s trigger law that effectively bans abortion. Several protests took place in Boise over the weekend. (Sarah A. Miller/Idaho Statesman)
By Betsy Z. Russell Idaho Press

BOISE – A new lawsuit filed in the Idaho Supreme Court challenges Idaho’s 2020 anti-abortion “trigger” law, alleging it violates both the Idaho Constitution and the Idaho Human Rights Act. The suit seeks to block the law from taking effect in August.

The lawsuit filed by Planned Parenthood claims the trigger law – written to take effect if the U.S. Supreme Court overruled Roe v. Wade – violates the Idaho Constitution’s “guarantee of the fundamental right to privacy in making intimate familial decisions”; violates the Idaho Constitution’s equal protection clause, along with the Idaho Human Rights Act’s prohibition on sex discrimination; and violates the Idaho Constitution’s due process clause due to unconstitutional vagueness.

The law makes performing any abortion in Idaho, at any stage of pregnancy, a felony, with just two narrow exceptions: to prevent the death of the pregnant woman, and not from potential self-harm; or in cases of rape or incest documented with a police report provided to the doctor.

The lawsuit charges that the wording of the exceptions is so vague that medical practitioners would be unable to determine if their conduct complied with the law or not.

“It is abhorrent that we have now entered an era where the delivery of safe essential health care will be criminalized,” said Dr. Caitlin Gustafson, an Idaho doctor who’s a named plaintiff in the case on behalf of herself and her patients, along with Planned Parenthood, on behalf of itself, its staff, physicians and patients.

“Physicians take an oath to provide the care patients need to keep them safe,” Gustafson said in a statement, “so we cannot stand by while the government intrudes on this deeply personal and complex medical decision.”

The lawsuit is one of a wave across the country, including cases already pending challenging trigger laws in Louisiana, Florida, Utah and Arizona, the Associated Press reports. At least one of those, in Florida, argues that state’s trigger law violates the Florida Constitution. Louisiana’s trigger law was temporarily blocked Monday, pending a July 8 hearing.

On equal protection, the new Idaho lawsuit argues that the trigger law impermissibly discriminates against women. “The Ban purposefully places a host of burdens on women, with no equivalent burdens on men,” the petition says. “The law is designed to deprive only women of the right to choose whether or not to be a parent and to their bodily autonomy.” It notes that the Idaho Human Rights Act forbids discrimination on the basis of sex.

On privacy, the lawsuit cites Article I, Section 1 of the Idaho Constitution, which says, “INALIENABLE RIGHTS OF MAN. All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.”

Citing a string of Idaho Supreme Court cases stretching back to 1971, the lawsuit says, “As this Court has recognized for almost 50 years, the right to decide whether to procreate is a fundamental right under the Idaho Constitution.”

The constitutional section is expansive, the lawsuit says, and therefore protects the right to privacy in making “intimate familial decisions” as an “inalienable right.”

The petition also points to disproportionate impacts on poor women under the law, and says, “In addition, the Ban will add to the anguish of patients and their families who receive fetal diagnoses incompatible with sustained life after birth – forcing patients to carry doomed pregnancies and suffer the physical and emotional pains of labor and delivery, knowing all the while that their child will not survive.”

In its 24-page petition to the Idaho Supreme Court, Planned Parenthood writes that Idaho’s trigger law, which is set to take effect 30 days after the U.S. Supreme Court’s Friday decision overturning Roe v. Wade is formalized through a judgment, could take effect, at the earliest, on Aug. 18. That’s allowing 25 days from the decision for the judgment to issue, and then the 30-day time period after that.

It asks the court to grant an emergency ruling barring the trigger law from being enforced and declaring it both unconstitutional and a violation of the Idaho Human Rights Act, and also requests that if arguments in the case extend beyond Aug. 18, the law be blocked from taking effect.

McKay Cunningham, a law professor who teaches at the College of Idaho, said the case may be a “long shot.” First, the Idaho Supreme Court would need to agree that it has original jurisdiction to take it on, he said. “It could very well be that the Idaho Supreme Court doesn’t want this hot potato and decides it doesn’t have original jurisdiction, and punts it down to the trial court, by which time the law will have gone into effect.” He said the privacy argument is somewhat parallel to arguments at the national level involving the U.S. Constitution, but that there are Idaho court cases that support it.

The case was filed against the state of Idaho; Gov. Brad Little; Attorney General Lawrence Wasden; Ada County Prosecutor Jan Bennetts; Twin Falls County Prosecutor Grant Loebs; and the Idaho state boards of medicine, nursing and pharmacy. Punishments for violations of the trigger law include prison time and suspension or permanent revocation of medical licenses.

Little’s office issued this statement: “The governor’s office is reviewing the pleadings filed with the Idaho Supreme Court and will be working with counsel to respond as required by the Court.”

Betsy Z. Russell is the Boise bureau chief and state capitol reporter for the Idaho Press and Adams Publishing Group. Follow her on Twitter at @BetsyZRussell.

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