BOISE, Idaho — Planned Parenthood is asking the Idaho Supreme Court to block Senate Bill 1309, the new law that provides civil penalties for abortions performed after a fetal heartbeat is detected -- around six weeks into a pregnancy.
Gov. Brad Little signed the bill on March 23, saying he that he stands "in solidarity with all Idahoans who seek to protect the lives of preborn babies." In his signing statement, he also wrote, "I fear the novel civil enforcement mechanism will in short order be proven both unconstitutional and unwise..."
SB 1309 allows an expectant father, grandparent, sibling, aunt or uncle to sue a medical provider who performs or attempts to perform an abortion that violates the law for damages of $20,000 or more, plus court costs and attorney fees. There are exceptions for medical emergencies, rape and incest. The legislation requires a police report in cases of rape or incest.
In its petition, Planned Parenthood calls the new law "unlawful and unenforceable under the Idaho Constitution." The petition claims the new law, set to take effect on April 22, improperly delegates law enforcement to private citizens, undermines a patient's right to privacy, violates the separation of powers, and allows plaintiffs without injury to sue.
"SB 1309 is no ordinary civil enforcement mechanism. It is embedded in the State’s criminal code, yet it explicitly deprives the Executive of the authority to enforce the State’s prohibition," the petition says. "Distinct from a tort or any other civil remedy provision, which exists to remedy a wrong done specifically to an individual claimant, SB 1309 exists to dangle a carrot in front of ordinary citizens to enforce the State’s policies and preferences where the State explicitly cannot, and where some of these citizen enforcers suffer no actual harm... For these and other reasons, the Idaho Office of the Attorney General informed the Legislature, prior to the bill’s enactment, that SB 1309 was likely unconstitutional. The Legislature enacted the statute anyway."
Under the 1973 Roe v. Wade U.S. Supreme Court decision, states may not regulate abortion during the first trimester.
"Even setting aside the fundamental right to privacy in making intimate familial decisions granted by Idaho's Constitution, the bill's flaws are flagrant and many," reads a passage in the introduction to Planned Parenthood's petition.
Planned Parenthood filed the lawsuit on behalf of the organization, its staff, physicians and patients, and on behalf of a family medicine physician, Dr. Caitlin Gustafson, MD, and her patients. Gustafson is based in Valley County.
"If allowed to take effect, the ban won’t just deny Idahoans their constitutional right to abortion in Idaho, but also effectively eliminate health care entirely for many residents who don’t have the money or time to travel out-of-state to obtain the care they need," Planned Parenthood said in a news release announcing its lawsuit.
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