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Zombie laws, designed to intimidate, clutter Idaho’s statute books

The rotunda at the Idaho Capitol on January 17, 2022. (Otto Kitsinger for Idaho Capital Sun)
Otto Kitsinger
The rotunda at the Idaho Capitol on January 17, 2022. (Otto Kitsinger for Idaho Capital Sun)

Some laws concerning topics like abortion and critical race theory are designed to intimidate disfavored groups from engaging in lawful activities, writes guest columnist Jim Jones.

Idaho’s law books have become cluttered in recent years with laws that were placed on the books by preening extremists, more for the purpose of gaining votes than addressing real public problems. I like to call them zombie laws because they just languish there on the law books, serving no legitimate purpose. Rather, the laws are designed to intimidate disfavored groups from engaging in lawful activities.

An example of a zombie law is the “No Public Funds for Abortion Act,” which was attacked by the White House on Sept. 27 as “extreme and backwards.” The law prohibits state colleges and public schools from promoting abortions. There was absolutely no evidence that such activity was going on in the state, but that fact was of little concern to the culture war extremists in our Legislature.

When our universities warned their staff about the law and the stiff penalties awaiting violators, Idaho made nation-wide headlines, but not in a good way. Even though the law is poorly worded and subject to constitutional challenge, it is the law of Idaho until the courts rule otherwise. The law was clearly intended to intimidate educators from legitimate discussion of reproductive issues in the education setting, and it appears to have had that very effect.

Our extremist legislators have made it a practice to weaponize culture war issues to intimidate target groups from doing things that are constitutionally permissible. Critical race theory is another such issue. There has been a frantic search for critical race theory by extremists during the last couple of years, but nobody has found any credible evidence that it exists in the Gem State. The law is constitutionally unenforceable on First Amendment and vagueness grounds, but that is of no import to the drafters. Challenging such laws in court is costly and time consuming, so most schools simply give in to the intimidation and limit their teaching of historical facts.

I have my own experience in this regard. I was recently asked to speak to a group about critical race theory. The group was interested in learning what it was. The venue was to be a public-supported community college. Fear arose that the law would jeopardize public funding for the school, even with an objective discussion, so my talk was relocated to a local church. The group agreed with me that the law was unconstitutional, but they did not want to have to litigate the matter.

Idaho has another law that criminalizes “disseminating material harmful to minors.” The law is subject to constitutional challenge. Extremist legislators called attention to the law earlier this year when they tried to criminalize librarians under its provisions. They narrowly failed this year but have made it known they will try again next year. Should they be successful, there will be just one more zombie law on the books, serving no valid purpose, but intimidating librarians from properly doing their work.

The Legislature passed a law this year giving an abortion patient and her family members the right to collect a minimum of $20,000, each, from an abortion provider. The law has a number of legal infirmities but will likely remain on the books to continue intimidating doctors from even thinking about providing a medically necessary abortion.

And, so it goes.

Idaho extremist legislators enrage their supporters by raising fake culture war issues and then making a big show of “fixing” them. The remedy is usually hastily-conjured, ambiguously-worded legislative measures that often exceed constitutional limitations. Targeted groups – public employees, doctors, whoever – are intimidated into inaction for fear of prosecution or the cost and expense of litigation.

These irresponsible legislators will continue getting away with this unconscionable grift, unless the public rises up at the ballot box. The ball is in the court of Idaho’s voters.

The Idaho Capital Sun is a nonprofit news organization delivering accountability reporting on state government, politics and policy in the Gem state. As longtime Idahoans ourselves, we understand the challenges and opportunities facing Idaho. We provide in-depth reporting on legislative and state policy, health care, tax policy, the environment, Idaho’s explosive population growth and more. Our mission is relentless investigative journalism that sheds light on how decisions in Boise and beyond are made and how they affect everyday Idahoans. We aim to tell untold stories and provide data, context and analysis on the issues that matter most throughout the state. The Capital Sun is part of States Newsroom, a national 501(c)(3) nonprofit supported by grants and a coalition of donors and readers. We retain full editorial independence.