Idaho AG opinion: Bill before Senate would ban ‘almost all abortions’ 

Advocates say law would act as a legal backstop while waiting on Supreme Court decision

By: - February 16, 2022 11:06 am
Idaho Capital Building in Boise

The Idaho State Capitol building can be seen near the old Ada County Courthouse in Boise on March 20, 2021. (Otto Kitsinger for Idaho Capital Sun)

The Senate State Affairs Committee advanced a bill to allow civil lawsuits to be filed against medical professionals who perform abortions after cardiac activity is detected.

The committee heard more than an hour of testimony on Senate Bill 1309 from individuals as well as organizations, including Planned Parenthood, Stanton Healthcare, the American Civil Liberties Union and the Idaho Medical Association. Most of the testimony was in favor of passing the bill, which would award no less than $20,000 to the mother, father, grandparents, siblings or aunt or uncle in a successful lawsuit.

The Idaho Attorney General’s office has provided an opinion to Sen. Grant Burgoyne, D-Boise, saying the bill would likely be found to violate constitutional rights under existing federal law. A copy of the opinion was obtained by the Idaho Capital Sun.  

“(Senate Bill) 1309 would effectively prohibit almost all abortions in the State of Idaho beginning at about six weeks gestational age 30 days after enactment. Should a court adjudicate a challenge to the law on the merits of the restriction on abortions, it would likely be found unconstitutional,” Deputy Attorney General Brian Kane said in the opinion.

Blaine Conzatti, president of the Idaho Family Policy Center, presented the bill on Wednesday and said it adds a “private enforcement mechanism” to House Bill 366, a bill that passed the Idaho Legislature in 2021 banning abortion procedures “when a fetal heartbeat can be detected.” The legislation contained a provision making it effective in Idaho if a United States appellate court ruled in favor of a restriction or ban related to fetal cardiac activity.

Idaho law would follow complicated legal processes started by other states

Various legal proceedings have made the issue difficult to follow for people who aren’t experts in the judicial system. In September, the U.S. Supreme Court did not grant an injunction that would have kept a similar law in Texas from going into effect because the law relies on enforcement through private action rather than through the government. 

Conzatti said that legal loophole is one the law could take advantage of until the U.S. Supreme Court rules on the constitutionality of a similar Mississippi abortion law that would ban most abortions after 15 weeks. That decision is expected to be released by the end of June.  

“We have an opportunity right now to employ the strategy that Texas has embarked on to start saving babies right now, and a significant number of babies,” Conzatti told the committee. “(And) even if (the Supreme Court) returns the issue of abortion back to the states entirely, our trigger law … could still face a lengthy challenge in state courts. So this legislation, if enacted, could act as a backstop if those legal challenges to the state law occurred.”

The Texas law goes further than Idaho’s version, because it allows individuals to sue medical professionals who perform abortions or anyone else who might be “aiding and abetting” abortions after six weeks. The award to successful plaintiffs in Texas is at least $10,000.

Idaho’s law would include exceptions for medical emergencies and for women who have become pregnant through rape or incest — the Texas law does not include those exceptions. The bill also does not include “aiding and abetting” in the civil statute, meaning only the abortion provider would be subject to litigation.

The Idaho law would allow a lawsuit to be brought against a medical professional up to four years after the abortion was performed.

Planned Parenthood Alliance Advocates Idaho State Director Mistie DelliCarpini-Tolman said allowing litigation up to four years later opens up opportunities for abuse of the law.

“If you think about a situation where someone is in a relationship and they break up, and the person is upset about the breakup, they could then sue the abortion provider,” DelliCarpini-Tolman said. “There’s a lot of really cascading negative effects of this bill that are going to essentially make it so that abortion providers in Idaho are just not going to be providing abortions after six weeks.”

What comes next for the Idaho Legislature?

The Senate State Affairs Committee previously voted against introducing another version of the bill at the end of January, also presented by Conzatti, because of wording that some legislators worried was too broad. Changes were made to the bill based on that feedback, he said.

Support for the bill from some legislators came with the contingency that an additional trailer bill would make further changes to the burden of proof for damages on the person filing the lawsuit versus the medical professional, as well as legal options for the medical professional if the lawsuit is found to be frivolous.

Conzatti said the trailer bill has support from members of the Senate and House and would pass once it is introduced.

The two Democrats on the committee voted against sending the bill to the floor. It will receive a vote from the full Senate in the coming days of the session. The bill includes an emergency clause stating it would go into effect 30 days after being signed into law by Gov. Brad Little.

Access to abortion continues to be legal in Idaho and the rest of the United States unless the Supreme Court overturns the Roe v. Wade court decision.

“We’re going to fight to keep it that way, and if someone needs us, they should absolutely reach out and get the care they need,” DelliCarpini-Tolman said. 

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Kelcie Moseley-Morris
Kelcie Moseley-Morris

Kelcie Moseley-Morris is an award-winning journalist who has covered many topics across Idaho since 2011. She has a bachelor’s degree in journalism from the University of Idaho and a master’s degree in public administration from Boise State University. Moseley-Morris started her journalism career at the Moscow-Pullman Daily News, followed by the Lewiston Tribune and the Idaho Press.