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Abortion providers ask Idaho Supreme Court to block state’s new 6-week ban

<i>Darin Oswald/AP</i><br/>Even as he signed the bill into law last week
Darin Oswald/AP
Even as he signed the bill into law last week

By Tierney Sneed

Abortion providers are asking the Idaho Supreme Court to strike down the state’s new six-week abortion ban which mimics a controversial Texas law.

The providers said in a lawsuit filed Wednesday that the Idaho law violates several provisions of the state constitution. They’re asking the state Supreme Court to intervene before April 22, when the law goes into effect.

The law poses a “massive liability threat” to providers that is “so significant that the few remaining abortion providers in Idaho would have to cease the majority of abortions,” Rebecca Gibron, the interim CEO of the Planned Parenthood affiliate bringing the lawsuit, told reporters Wednesday.

The new court fight comes as attempts to block Texas’ version of the law, which went into effect in September, have gained little traction. Texas abortion patients are now seeking treatment at out-of-state clinics and the impact would be similar in Idaho, the legal challengers warned, if the state law were to go into effect.

“Without access to abortion in Idaho, patients will be forced to travel extraordinary distances out of State, and to incur additional costs — a daunting and prohibitive obstacle for many,” the lawsuit said, noting that the out-of-state clinics nearest to Boise are more than 200 miles away.

Bringing the lawsuit is Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, as well as Caitlin Gustafson, a physician in Idaho.

Like the Texas law, the Idaho measure outlaws abortions after fetal cardiac activity is detected — a point around six weeks into pregnancy, when many women do not know yet that they’re pregnant.

Also like Texas, the Idaho law tasks enforcement to private citizens, who can bring lawsuits against medical professionals who performed prohibited procedures. Specifically, the Idaho law says that the father of the fetus, as well as his or the woman’s family, can bring lawsuits seeking damages of at least $20,000. It provides exceptions for rape and incest — contingent on the abortion-seeker reporting the crime to law enforcement and providing documentation of that report to the abortion clinic — and in cases of a “medical emergency.”

The new lawsuit alleges that the six-week ban violates the Idaho Constitution’s separation of powers doctrine, its prohibition against “special” laws, its right to privacy provisions, its due process guarantees and its equal protection clause.

The challengers pointed to assessments by the Idaho attorney general’s office and by the state’s Republican Gov. Brad Little, who suggested that the law was likely to be found unconstitutional.

Even as he signed the bill into law last week, Little raised concerns that the “novel civil enforcement mechanism will in short order be proven both unconstitutional and unwise.”

“Deputizing private citizens to levy hefty monetary fines on the exercise of a disfavored but judicially recognized constitutional right for the purpose of evading court review undermines our constitutional form of government and weakens our collective liberties,” Little said in a statement accompanying the signing.

Spokespeople for Little and state Attorney General Lawrence Wasden declined to comment Wednesday.

Idaho providers are focusing their fight on the state supreme court after efforts to block the Texas version have flailed in federal courts.

The US Supreme Court has repeatedly declined requests that it halt the Texas law, including in a December ruling that left clinics with limited options for challenging it in federal court. Earlier this month, the Texas Supreme Court issued a ruling that effectively foreclosed that path, and other state court lawsuits targeting the law have been dragged out over procedural issues.

However, the legal terrain for clinics will be different in Idaho than it is in Texas, according to Carrie Flaxman, senior director of public policy, litigation and law with Planned Parenthood Federation of America.

“Idaho law is very, very different than Texas’ with respect to being able to sue the state,” Flaxman told reporters Wednesday. “Under Idaho law, it is very clear that people whose constitutional rights are violated — as are Planned Parenthood and Dr. Gustafson, and in particular, our patients — can go to court and sue the state.”

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CNN’s Shawna Mizelle contributed reporting.

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