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Idaho Supreme Court denies state request to lift pause on Texas-style abortion law

Idaho Supreme Court - 2021
Otto Kitsinger
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Idaho Supreme Court building in Boise on March 23, 2021. (Otto Kitsinger for Idaho Capital Sun)

Chief justice included no further information in the succinct decision

The Idaho Supreme Court on Friday denied a request from the Idaho Attorney General’s office to end its pause on implementation of an abortion law passed by the Legislature earlier this year.

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 and Gov. Brad Little signed it into law on March 23, but not without saying he had reservations about the lawsuit mechanism, and that 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 the case is ongoing.

If the court had agreed to lift the stay, the law would have gone into effect immediately.

The state argued in court documents filed earlier this month that the order to delay the law’s implementation, which was granted in early April, was procedurally improper. Deputy Attorney General Megan Larrondo wrote in a brief that neither party in the lawsuit formally requested a stay and both parties had not agreed to it. She also said the court did not have the authority to grant a stay because the lawsuit was filed against the State of Idaho rather than a designated state official, such as Gov. Brad Little.

Idaho Supreme Court Chief Justice G. Richard Bevan signed the order Friday denying the motion. Bevan did not include an explanation of the denial, stating only that the court reached its decision “after due consideration” of both parties’ arguments.

A few days after the state filed its request to lift the stay, Politico published a leaked first draft of a U.S. Supreme Court majority opinion that would overturn Roe v. Wade, the case that acknowledged a constitutional right to seek an abortion.

If the U.S. Supreme Court does overturn that decision, a trigger law passed by the Idaho Legislature in 2020 would take effect 30 days later and make abortion a felony. The law only makes exceptions for rape, incest and to save the pregnant person’s life. A rape or incest victim would have to provide a copy of a police report to the physician who would perform the procedure.

The Idaho Supreme Court has not yet scheduled a hearing for oral arguments in the case.