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State asks Idaho Supreme Court to rescind order delaying abortion law’s implementation

Idaho Supreme Court - 2021
Otto Kitsinger
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The Idaho Attorney General’s Office filed a series of briefs last week asking the Idaho Supreme Court to vacate its order delaying implementation of the state’s newest abortion law. (Otto Kitsinger for Idaho Capital Sun)

Deputy attorney general argues court’s stay order was procedurally improper

The Idaho Office of Attorney General filed a series of briefs last week asking the Idaho Supreme Court to vacate its order delaying implementation of the state’s newest abortion law. The attorney general’s office also asked the court to strike portions of statements from Planned Parenthood representatives.

If the court does vacate its order, the law would take effect immediately.

The law, Senate Bill 1309, is modeled after similar legislation in Texas and allows civil lawsuits against medical professionals who provide abortions after fetal cardiac activity can be detected by ultrasound, which is generally by six weeks of pregnancy.

The bill passed the Idaho Legislature. Gov. Brad Little signed it into law on March 23, but not without saying he had reservations about the civil lawsuit mechanism, and he expected it would be challenged in court.

A week later, a regional chapter of Planned Parenthood filed a lawsuit challenging the law, and the Idaho Supreme Court granted a pause on the law’s implementation while it considers the case.

Deputy Attorney General Megan Larrondo filed a brief Friday arguing the Idaho Supreme Court’s order granting a stay was procedurally improper, in part because neither party formally requested it and because there was a misunderstanding that both parties had agreed to a stay when that was not the case.

Larrondo also argued the court did not have the authority to grant a stay because Planned Parenthood representatives chose to file the lawsuit against the State of Idaho rather than a designated state official such as Gov. Brad Little.

Larrondo also filed a brief asking the court not to consider a series of statements from Kristine Smith and Dr. Caitlin Gustafson, who filed statements on behalf of Planned Parenthood. Smith is an area services director for the organization, and Gustafson is a medical doctor who performs abortions for Planned Parenthood.

In her brief, Larrondo argues that Planned Parenthood statements — such as national poverty statistics and limitations that would be placed on abortion access if the law stands — are speculative and not based in fact and should therefore be inadmissible in court.

Planned Parenthood could not be reached for comment.

The Idaho Supreme Court granted a motion in April to allow the Idaho Legislature to intervene in the case, so lawyers for Speaker of the House Scott Bedke, R-Oakley, and Senate President Pro Tem Chuck Winder, R-Boise, filed a brief on behalf of the Legislature on Friday as well. The brief argues the law falls within the Legislature’s authority to regulate abortion and does not violate any constitutional rights, including a right to privacy.

“The regrettable disorder and disunity that afflicts our polity is the product of the Roe/Casey abortion regime, and that is what (Planned Parenthood is) defending,” the Legislature’s brief says. “As they have every right to do, just as we, the Idaho Legislature representing the people of the state of Idaho, have every right to seek to end that disorder and disunity by returning the great moral question—What is the moral value of a preborn child?—to where it belongs, the democratic process.”

Politico on Monday night published a leaked first draft of a U.S. Supreme Court majority opinion that would overturn abortion rights.

In the draft published by Politico, Justice Samuel Alito also attributed political turmoil to Supreme Court cases upholding abortion rights. “(Roe v. Wade) was egregiously wrong from the start,” he wrote, according to the draft published by Politico. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and (Planned Parenthood v. Casey) have enflamed debate and deepened division.”

According to the schedule laid out in court documents, Planned Parenthood’s response to the briefs is due by May 12. The Idaho Supreme Court does not have a set timeline for acting on the motions, and a hearing for oral arguments in the case has not yet been scheduled.