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AG's office wants to delay a lawsuit challenging Idaho's new abortion ban

Ada County Statehouse Capitol Building Attorney General Office Wasden
Frankie Barnhill
Boise State Public Radio

The Idaho Attorney General’s Office argues things are moving too quickly in a lawsuit challenging the state’s new abortion ban.

The law would make it illegal to perform most abortions after six weeks when most women don’t know they’re pregnant. A family member of the aborted fetus could sue the doctor performing the procedure after that time, with a minimum civil penalty of $20,000.

Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky, which represents the organization’s three clinics in Idaho, filed the case with the Idaho Supreme Court on March 30.

The organization asked the court to expedite the case since the law takes effect April 22. If implemented, patients would have to travel hundreds of miles out of state to get an abortion.

Planned Parenthood filed the request at 8:50 a.m. on March 30, which the court granted the next day.

In legal records, the state said it received a copy of that motion less than 24 hours before it was ruled upon.

Should that timeline stand, the state said it will have “a mere 14 days to gather the evidence necessary to dispute these assertions, in addition to crafting the legal arguments” to reject the challenge.

The attorney general’s office argues the case should first be handled by a district court judge – a process that could take months, if not years, to resolve – before it’s considered by the Idaho Supreme Court.

But without that typical first legal step, the state said it “will be denied the chance to conduct necessary discovery or retain expert witnesses, as well as an evidentiary hearing or a trial to establish a factual record.”

Planned Parenthood dismissed those arguments, saying two weeks to prepare a case is plenty of time given that the state had a head start.

“The Office of the Attorney General is not starting from scratch: It has long been aware of SB 1309—and its unconstitutionality,” the organization said in a court filing Monday.

Planned Parenthood is referring to an opinion from Chief Deputy Attorney General Brian Kane from February. In it, Kane outlined several parts of the law that were likely, or could be, found unconstitutional.

He said it would unduly burden pregnant women seeking an abortion under the U.S. Supreme Court’s previous ruling in Roe v. Wade, though that precedent could be modified or overturned later this summer.

In addition, Kane wrote that the law could be unconstitutional because it treats abortion providers differently than other doctors and it delegates the governor’s enforcement powers to private citizens.

The law’s minimum civil penalty of $20,000, which has no ceiling, could also violate a doctor’s right to due process “because there is arguably no fair notice of the severity of the penalty that may be imposed and the lack of a cap facilitates the imposition of an arbitrary penalty,” according to Kane’s opinion.

If the court chooses to reconsider its expedited timeline, Planned Parenthood said it would agree to it if justices halted the law from taking effect until the case can be resolved.

It’s unclear when the state supreme court will rule on the state’s request.

Follow James Dawson on Twitter @RadioDawson for more local news.

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I cover politics and a bit of everything else for Boise State Public Radio. Outside of public meetings, you can find me fly fishing, making cool things out of leather or watching the Seattle Mariners' latest rebuilding season.

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