Abortion, guns, gender identity: Freshman North Idaho lawmaker makes slew of pitches

A new bill would change Idaho’s criminal abortion statute to define the procedure as “intentionally” killing a “living embryo or fetus.”

The change seeks to clarify that Idaho’s near-total abortion ban does not apply to pregnancies in which the fetus has already died, said the bill sponsor, Sen. Scott Herndon, R-Sagle. Those parameters include ectopic pregnancies, when a fertilized egg implants outside the uterus, if the fetus has died.

Herndon said he spoke with medical providers who questioned whether Idaho’s “criminal abortion” law prohibits treating ectopic pregnancies.

“It offers clarity to our medical community that we are not talking about treatment in an ectopic pregnancy when we are talking about our criminal abortion ban,” Herndon said. “If we adopt this definition, you have to intend to kill a living embryo or fetus.”

Split along party lines, the Republican-dominated Senate State Affairs Committee on Monday voted to give a public hearing to the bill changing the abortion definition.

The freshman North Idaho lawmaker pitched four pieces of legislation Monday, including two on abortion, one on transgender people’s access to bathrooms and another strengthening the state’s stand-your-ground laws. The Senate State Affairs committee rejected one of the proposals, which would have repealed legal defenses for abortion providers if a pregnancy they terminated resulted from rape or incest.

Proposal repealing abortion exceptions rejected

Herndon is responsible for the Idaho Republican Party’s new hard-line stance on abortion. His successful proposal during last year’s state convention amended the party platform to support “the criminalization of all murders by abortion,” without exceptions.

In the second week of the legislative session, Herndon sought to repeal two of the state’s three legal defenses for abortion providers. The law grants legal defenses to providers if they terminate a pregnancy that endangers the life of the mother or was the result of rape or incest.

Herndon’s failed legislative proposal – which he compared to Martin Luther King Jr.’s advancement of civil rights – would have removed defenses for rape and incest.

“This legislation basically seeks to offer equal protection under the law to all children conceived,” Herndon said the day the nation honors the slain civil rights leader. King “spent 13 years advancing the civil rights of people based on certain characteristics, and this does the same thing. It seeks to advance civil rights based on certain characteristics.”

Senate Minority Leader Melissa Wintrow, D-Boise, “respectfully” but “forcefully” disagreed with Herndon’s likening of his intentions to King’s “goal of equal protection when it comes to racism and segregation.”

Wintrow asked Herndon whether a 13-year-old who was raped, “one of the most intimate and violent experiences she might have in her life,” would be “forced to carry that pregnancy to term.”

Herndon said, “Using the word ‘force’ is actually the problem.” Under his proposal, the state would not place “any undue influence or pressure on anybody related to the circumstances,” he said.

“Some people could describe the situation that you’re talking about as the opportunity to have a child in those terrible circumstances, if the rape actually occurred,” Herndon said.

All but one committee member, Sen. Ben Toews, R-Coeur d’Alene, voted to reject Herndon’s proposal to repeal the exceptions.

Senate President Pro Tem Chuck Winder, R-Boise; Majority Leader Kelly Anthon, R-Burley; and Assistant Majority Leader Abby Lee, R-Fruitland, were absent.

New anti-transgender bill introduced

Herndon introduced two other bills on Monday. One would block public agencies from requiring contractors to provide transgender people access to restrooms that align with their gender identities.

When former President Barack Obama in 2014 issued an executive order adding “sexual orientation” and “gender identity” to the federal Civil Rights Act, it compelled federal contractors to accommodate “multi-use restroom facilities or locker facilities for their employees based on gender identity or sexual orientation,” Herndon said.

“The net effect of that means that by signing that contract, they are affirming that they would allow a biological male who identifies as a woman to use biological female restroom facilities or changing facilities,” he said.

While the state cannot change federal law, Herndon’s bill would block the state and local governments from requiring that contractors provide access to restrooms, showers or changing rooms “on any basis other than biological sex.”

The State Affairs Committee voted Monday to introduce the bill. Wintrow voiced the sole dissenting vote.

In recent years, the Idaho Legislature has banned transgender women and girls from participating in female school sports and blocked transgender people from changing the gender on their birth certificates. A federal court ruled the birth certificate bill unconstitutional, while a court challenge to the athlete law is ongoing.

Bill would strengthen ‘stand-your-ground’ law

Herndon’s fourth bill, introduced Monday, would plug “holes” in the state’s “stand-your-ground” law. The current statute provides legal protections to someone who used force to protect themselves, others or their property from a threat of violence.

“It is a good statute for lawful self-defense,” Herndon said. “There are a couple of holes, potentially, in it that we’ve seen from instances nationally in the last couple of years.”

Herndon’s bill would require that a court grant a defendant a pretrial immunity hearing within 14 days of their arrest for using, or threatening to use, force in self-defense. Prosecutors would also be required to show “clear and convincing evidence” – higher than the normal standard of “probable cause” – to prosecute a defendant who claims they acted in self-defense.

“It basically gives our defendant the ability to get in front of the court a little sooner, to have the state elevate their standards to prove that he wasn’t acting in self-defense before he gets all the way down the road in a trial,” Herndon said.

The bill would also allow a judge to award legal costs to a defendant if a jury finds they acted in self-defense.

Herndon said the bill was inspired by Kyle Rittenhouse – an Illinois man found not guilty of murder after shooting three men, killing two, during a protest in Kenosha, Wisconsin, spurred by the police killing of a black man.

Also inspiring the bill, Herndon said, was Mark McCloskey. McCloskey and his wife were charged with felony gun crimes in 2020, after they waved guns outside their St. Louis home as people, protesting George Floyd’s killing by Minneapolis police, passed by. The McCloskeys pleaded down to misdemeanors and were later pardoned by Republican Missouri Gov. Mike Parson.

The committee unanimously voted to introduce the bill.

Wintrow said she supported introducing the bill but has “a lot of questions,” including what law enforcement officers think of it.