BOISE, Idaho — A week after it was enacted, Idaho’s new abortion law faces a lawsuit.
Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky filed a petition in the Idaho Supreme Court on Wednesday to block the law. Senate Bill 1309, which is set to go into effect April 22, bans most abortions after about six weeks of pregnancy — before many women know they’re pregnant — and also allows family members to sue abortion providers.
It’s modeled after a recent Texas law with a similar private enforcement mechanism, which was designed to evade judicial review.
“It sets a really dangerous precedent in Idaho, so we’re going to take the state to court,” Rebecca Gibron, interim CEO of Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky, told the Idaho Statesman by phone.
Attorneys from WilmerHale, an international law firm, and Boise-based Bartlett French filed the petition on behalf of the regional Planned Parenthood affiliate and Dr. Caitlin Gustafson, an Idaho abortion provider.
During a Wednesday news conference, Gustafson said she has provided family medical care for nearly two decades. The Valley County doctor said she joined the lawsuit to protect the patient-doctor relationship and access to standard medical care.
“Life is hard, it’s messy,” Gustafson said. “Decisions about pregnancy are complicated and need to be made between a patient and their doctor, without influence and direction from the government. Senate Bill 1309 puts Idahoans’ health and future into the hands of politicians. This is unconscionable and unconstitutional.”
The petition says the new law violates the Idaho and U.S. constitutions. It asks the Idaho Supreme Court to declare the law unconstitutional and forbid Idaho courts from validating it.
“We view this law as blatantly unconstitutional,” Gibron said. “It is government overreach at its worst. We believe that pregnant people have the right to make their own health care decisions, without the interference from politicians.”
Planned Parenthood and Gustafson’s petition argues the new Idaho law is unconstitutional for a number of reasons. The attorney general’s office, which is expected to defend the state in the case, already agreed.
The petitioners say the new abortion bill unlawfully delegates executive enforcement power to citizens, which is prohibited by the state constitution, and violates a constitutional right to privacy. It also privileges certain classes by giving legal standing to non-injured parties — such as family members — and establishes unequal protection under the law by treating doctors differently, the petition argues.
While Gov. Brad Little signed the bill last week, he said he has reservations and expects that the new law violates constitutional rights. Little wrote in his transmittal letter that he fears the “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 wrote.
Little’s spokesperson said Wednesday that the governor does not comment on pending litigation. A spokesman for the attorney general’s office also declined to comment.
In February, as the Legislature debated the bill, Idaho Chief Deputy Attorney General Brian Kane wrote a legal opinion that said the legislation would be vulnerable to challenges.
Kane worried about delegating enforcement powers to citizens and granting legal standing to family members, who can claim a minimum $20,000 penalty for injuries.
Blaine Conzatti, president of the Idaho Family Policy Center, which helped craft the legislation, said the law “is constitutionally, scientifically and morally sound.”
“A similar Texas law has successfully withstood several legal challenges in the federal courts, and we’re confident that our new law will survive any forthcoming legal challenge and begin saving pre-born babies,” Conzatti said in an email to the Statesman.
The civil action established by the Texas law has proved difficult for abortion rights advocates to challenge on constitutional grounds.
Attempts to block a law typically involve suing public officials who enforce it, but most Texas officials sued by abortion providers were either protected by sovereign immunity — a doctrine that says the government can’t be sued without its consent — or had no role in enforcing the abortion ban, the U.S. Supreme Court ruled.
Similar to the Texas law, Senate Bill 1309 says no public officials can enforce it. But the law would “likely still be vulnerable to a pre-enforcement suit,” Kane wrote in February. Idaho courts have ruled that the state government can be sued.
“The state of Idaho can be directly sued for violations of the Idaho Constitution,” Kane wrote.
And Idaho has been sued, as recently as last year. In August, the Idaho Supreme Court struck down a law that would’ve made it more difficult to pass a ballot initiative.
Since 1995, the Legislature has spent $3.2 million from the taxpayer-funded constitutional defense fund to pay for opponents’ legal fees when it loses in court. Idaho has spent more than $1 million fighting abortion alone, the Statesman previously reported.
“They routinely ignore their constituents and get the state of Idaho in costly legal battles in a way that is overall harmful to the state,” Gibron said.
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