September 28, 2022

Idaho’s highest court is latest in red state to weigh abortion ban | national news

By REBECCA BOONE and GEOFF MULVIHILL – Associated Press

BOISE, Idaho (AP) — It’s likely that virtually all abortions will eventually be banned in deeply conservative Idaho, as well as most other Republican-dominated states, but there are still battles to be played in the courts and perhaps before the legislature as abortion rights advocates continue to try to resist what may be inevitable.

On Wednesday, attorneys for a physician, a regional affiliate of Planned Parenthood, and the state government appeared before the Idaho State Supreme Court to discuss the possibility of applying a series of bans this month. Even if supporters prevail, state lawmakers could pass new bans.

The legal and political landscape has changed almost daily since the June 24 U.S. Supreme Court ruling that overturned Roe v. Wade of 1973 and allowed states to determine whether abortion should be permitted.

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Abortion rights groups scored perhaps their biggest victory since Tuesday’s June 24 ruling, when Kansas voters decisively rejected an amendment to the state constitution that would have allowed legislators to impose restrictions on abortion, or even a ban. The conservative state was the first in the country to ask a ballot question on abortion since the overturning of Roe v. Wade.

And on Wednesday, a Michigan judge extended an order barring county prosecutors from enforcing a 1931 abortion ban in that state until at least August 17.

The ban on abortion at any stage of pregnancy is enforced in eight states and as soon as fetal heart activity can be detected – usually around six weeks gestation – in five others. And most or all clinics have stopped offering abortion services in a handful of additional states due to legal uncertainty.

Abortion rights groups, which have spent decades in court trying to preserve access, are continuing the fight even in places like Idaho, where they are unlikely to prevail for long. term.

In several cases, judges suspended enforcement of the bans, allowing at least some abortions to continue, at least for a while.

In Kentucky, where enforcement of a ban has stopped and started multiple times since June, enforcement was allowed to resume with a ruling on Monday.

And in Louisiana, there were about 610 abortions per month in 2021. With the change in status, 249 were reported from June 24 to July 29. Although it was much less than normal during this period, the legal fight allowed some patients to access it.

Rachel Sussman, vice president of state policy and advocacy for Planned Parenthood, said the goal is to remove all barriers to abortion access, but partial victories can also help women. . “Whatever access we can maintain, we will fight for it,” she said.

In the Idaho cases, Dr. Caitlin Gustafson and Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky are suing the state for three statutes. The one that would come into force on August 25 would effectively ban all abortions. Another, which is not yet in place due to a stay granted by a court, allows potential parents of a fetus or embryo to sue providers who perform an abortion. A third law due to take effect Aug. 19 would ban abortions for pregnancies beyond six weeks’ gestation and was not expected to be part of Wednesday’s hearing.

It quickly became clear that the three laws are closely related. Judge Robin Brody noted that the laws refer to each other and even have language to specify what would prevail if all three were in effect.

Although the six-week abortion ban contains exceptions for procedures performed to save the life of the pregnant person or in cases of rape or incest, the exceptions set a very high bar that experts say will be difficult to achieve. For example, people using the rape or incest exception will need to report the crime to law enforcement and then show that report to the abortion provider – but it often takes weeks or months to get a copy of the crime. a newly filed police report on the Idaho public record. laws.

Banning abortion outright would allow healthcare providers to be charged with a crime even if abortion is the only way to save their patient’s life – but then healthcare providers could try to defend themselves in court with proof that the procedure was necessary because of an immediate medical emergency.

“This wording gives no indication of how imminent or how great the risk of death is for a claimant to feel confident,” Alan Schoenfeld, the attorney representing the plaintiffs, told the judges on Wednesday. “Suppose a patient with pulmonary hypertension has a 30-50% chance of dying…is that enough?”

The doctor and the abortion rights group argue that the law allowing potential parents of an embryo or fetus to sue abortion providers wrongly takes the enforcement of a law of the state and puts it in the hands of individuals rather than state entities, a violation of the separation of governmental powers. The law allows the father, grandparents, siblings, aunts and uncles of an “unborn child” to each sue an abortion provider for a minimum of $20,000 in damages in four years following the abortion. Rapists cannot sue under the law, but relatives of rapists can.

In court on Wednesday, Monte Neil Stewart, a lawyer representing the Legislative Assembly, urged state judges to end a stay preventing enforcement.

“Because of this sojourn, unborn children are being killed in Idaho, contrary to duly enacted and fully valid laws,” he said.

Assistant Attorney General Megan Larrondo, representing the state, noted that abortion was a crime since Idaho was a territory. “There’s no way the framers, the framers of the Idaho Constitution, thought they were enshrining anything like a fundamental right that was criminally prohibited at the time they were writing the document,” he said. she stated.

But Schoenfeld reminded the court that women weren’t allowed to vote when the state constitution was written, and many things that were considered crimes at the time have since been ruled unconstitutional under the document. .

A written notice is expected in the coming weeks – possibly before the bans take effect later this month.

Lawmakers have made it clear they want a ban in place. And the Idaho GOP at its annual convention last month passed a resolution opposing abortion in all cases — even if done to save the life of the mother.

Still, abortion rights advocates have become galvanized in the wake of the US Supreme Court ruling, including in Idaho.

Abortion rights protests drew large crowds to Boise. And last month, the Boise City Council passed a resolution that limits funding for abortion investigations and says investigations aimed at prosecuting abortion providers will not be prioritized.

This story has been updated to correct the name of the attorney cited in Monte Neil Stewart’s 17th paragraph. Stewart represents the Idaho Legislative Assembly with fellow attorney Daniel Bower.

Mulvihill reported from Cherry Hill, New Jersey. AP writer Sara Cline in Baton Rouge, Louisiana contributed to this article.

Follow AP’s abortion coverage at https://apnews.com/hub/abortion.

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