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Boise resolution on abortion creates questions surrounding law enforcement and Idaho's new abortion laws

Boise City Council voted Tuesday to pass a resolution saying city resources won't be prioritized to investigate claims of illegal abortion.

BOISE, Idaho — The ripple effect of Boise’s abortion resolution continues to expand with an ongoing conversation on the topic. On Tuesday, during the weekly city council meeting, the city council voted to declare it would not prioritize city resources to help in the investigation of anyone accused of violating Idaho’s new abortion ban, set to begin in August.

Mayor Lauren McLean told the 208 Wednesday that the city will not invade the privacy of individuals and doctors who are making really tough decisions. Decisions, she says, that should remain private.

The mayor explained her position saying Boise Police, the law enforcement arm who would do those investigations in Boise, would be better off keeping people safe.

There have been questions though. Can a city pass a resolution saying they essentially won't enforce a law?

There is a section of Idaho code that some are pointing to. Title 31, chapter 22 deals with the powers of county sheriff's. The code says in-part: "Whenever in the opinion of the governor any peace officer of this state refuses to offer assistance when requested to do so, or refuses to perform any duty enjoined upon him by the penal statutes of this state, the governor shall direct the attorney general to commence action under chapter 41, title 19, Idaho Code, to remove such officer from office."

KTVB got insight on Idaho law and how it interacts with the new Boise resolution from former U.S. Attorney for Idaho, Wendy Olson.

Olson says her interpretation of the law reads the code as only applying to Idaho State Officer, also known as Idaho State Police.

“The Idaho Constitution, Art. 12, Sec. 2 provides that 'Any county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws.' This is generally referred to as a city’s police powers," Olson explained. 

"Even assuming that Idaho’s abortion statute is a general law, the Boise City Council’s resolution is almost certainly (and I use that qualifier because anything can be litigated) not in conflict with it,” Olson said. 

Olson says there are three main reasons for her explanation.

“First, the resolution is not a regulation or ordinance. Second, the resolution doesn’t purport to make abortion legal – so no conflict. Third, the language of the resolution is very careful," Olson said. "It says the city will not prioritize investigations of providers and that it will not expend additional resources on such investigations. Governmental bodies always have to decide how to allocate scarce law enforcement resources. The resolution does that.” 

The caveat here is anything can be litigated, and it will not be surprising if this situation comes up in a courtroom one day.

The situation highlights a potential gray area for law enforcement in the Boise area.

KTVB reached out to the Ada County Sheriff's Office on how the Boise resolution could impact them. 

A spokesman writes to KTVB "We are still analyzing the situation and figuring out what this means for our agency. What I can tell you is we generally don't investigate reports of crimes in another jurisdiction, unless specifically asked to by that agency. In general terms, we investigate activity in our jurisdiction the Idaho legislature has determined to be crimes, and pass that information to the Ada County Prosecutor's Office, who makes a charging decision."

In recent weeks, Boise Police has commented on the concept of not using resources to investigate cases of illegal abortion. 

In a Twitter thread, BPD wrote: "Pending legal review and input from Boise City Council, Boise Police are not planning on providing additional resources to investigate reports regarding abortion. We understand that there are many strong feelings on this issue and will follow the direction of our legal team"

KTVB reached out to Governor Little's Office with some questions on the resolution and enforcing the law. Little’s office did not respond immediately but Gov. Little did take to Twitter to comment, writing:

"Idaho led the nation in protecting preborn lives. When the trigger law goes into effect in a few weeks, abortion will be illegal in Idaho. That's the law of the land, and as elected officials we must uphold the law," the Governor’s tweet said Thursday.

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