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Idaho Supreme Court to decide the fate of the state's abortion bans

Idaho Supreme Court abortion lawsuits
Sarah A. Miller
Idaho Statesman
Justice Gregory W. Moeller asks for clarification from Alan Schoenfeld, a New York City lawyer who is part of the legal team representing Planned Parenthood, as the lawyer makes a case for procedures in two lawsuits pertaining to Idaho abortion laws: the state trigger law and the law allowing people to sue abortion providers at the Idaho Supreme Court in Boise on Wednesday, Aug. 3, 2022.

The Idaho Supreme Court Wednesday heavily questioned both Planned Parenthood and the state over whether it should block the implementation of multiple abortion bans set to take effect this month.

The first law, originally passed in 2020, would outlaw all abortions except in cases of rape, incest, or if the pregnancy threatens the life of the mother. It’s due to be implemented Aug. 25.

A second ban that includes a Texas-style civil litigation component is currently on-hold under the court’s order. The final piece of legislation set to take effect Aug. 19 would ban abortions after six weeks of pregnancy.

Lawyers on all sides agreed to the court consolidating these three cases.

Justices repeatedly asked why they should consider the issue at this time, instead of having a lower court wade through all of the potential evidence and testimony that could be brought up.

That’s because the Idaho Supreme Court typically only takes up legal appeals or when a lawsuit questions a statute’s constitutionality on its face.

For example, Planned Parenthood cited several medical journals in court documents outlining its arguments.

“Doesn’t that suggest that we’re going to have to weigh and consider scientific evidence?” asked Justice Gregory Mueller.

Alan Schoenfeld, an attorney representing Planned Parenthood disagreed. Schoenfeld said the court could find the law plainly unconstitutional based on technical reasons.

Justices peppered Deputy Attorney General Megan Larrondo with similar questions.

Justice Colleen Zahn asked how she’s supposed to rule on these undefined medical terms when she’s not a doctor.

“Can I make that determination, or do I need some input from a medical provider?” Zahn said.

Larrondo argued the terms are standard and well-understood by physicians.

Also, she said, “There’s no requirement for criminal statutes that every single word need be defined.”

Schoenfeld repeatedly questioned that argument, saying it’ll have a chilling effect on doctors treating patients with fetal complications.

“That language gives no indication of how imminent or substantial the risk of death must be in order for the provider to feel confident that he can provide an abortion without risking prosecution, jail and professional sanction,” he said.

Justice Mueller questioned that logic, considering framers of both the territorial and state constitutions wrote those documents at a time when abortion was strictly illegal here until the Roe v. Wade decision in 1973.

Shortly after that opinion,legislators keen on tailoring Idaho’s abortion laws to be “as restrictive as possible” began a 50-year effort to outlaw the procedure once again.

Many of those state laws have been challenged in court, with some of them being overturned as unconstitutional.

Also up for debate is the interplay among these three bans. The near-total ban is supposed to reign supreme if it's enacted. The state said it envisions the civil lawsuit component of the Texas-style law to remain valid if both are allowed to take effect.

But Justice Brody posed several questions to the state suggesting that wouldn't be the case.

In addition to the three lawsuits filed in the state Supreme Court by Planned Parenthood, the Biden administration Tuesday filed its own suit against Idaho. It’s the first major legal action taken against a state trying to restrict access to abortion following the U.S. Supreme Court’s ruling in June.

Attorney General Merrick Garland argues the near-total abortion ban passed by the Idaho legislature in 2020 would violate a federal law regulating hospitals that receive Medicare funding.

That law states hospitals receiving those dollars must treat patients with serious health issues who show up in an emergency room – including providing abortions to treat fetal complications, Garland said.

Idaho Attorney General Lawrence Wasden released a statement calling the federal lawsuit “politically motivated” and argued those regulations don’t prevent states from enforcing their own rules – so long as they don’t conflict with the requirements of the law.

The Idaho Supreme Court has no deadline to release its opinion in the case.

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. If you have a tip, please get in touch!

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