Idaho Supreme Court allows state lawmakers to defend its Heartbeat Law

By Dave Andrusko

On Monday, without comment, the Idaho Supreme Court allowed state lawmakers to intervene in a lawsuit “challenging the constitutionality of a law they passed earlier this year that would ban abortions after about six weeks of pregnancy,” the Associated Press’s Keith Ridler reported.

The law is set to go into effect on April 22.

The request to take part in defending the Fetal Heartbeat Preborn Child Protection Act [Senate Bill 1309] came from Republican House Speaker Scott Bedke, Republican Senate President Pro-Tem Chuck Winder, and the Legislature. Last week, also without comment, the Court said the Catholic Church could not file a friend of the court brief.

“The law is modeled after a Texas law enforced through lawsuits to avoid constitutional court challenges,” according to Ridler. “The law had been scheduled to take effect Friday but was temporarily blocked by the court following a lawsuit by a regional Planned Parenthood organization [Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky] which called the law an ‘unprecedented power grab by the Idaho Legislature.’”

Ordinarily when a state’s law is challenged, the attorney general is tasked with defending it. But in its petition, the Legislature said the attorney general’s office “compromised its ability to defend the legislative body by expressing a legal opinion,” the Idaho Stateman Nicole  Blanchard wrote

The Legislature criticized the attorney general’s office, which said in a legal opinion that the legislation was likely unconstitutional. Little also “inserted himself into the present legal debate” by saying that the civil enforcement mechanism of the law might prove unconstitutional, the petition said.

The petition included concerns over the attorney general’s willingness to “vigorously” defend the Legislature. It points out that Planned Parenthood has used Little and Kane’s criticism as evidence of the abortion law’s unconstitutionality. 

“Because of the governor’s letter and the opinion of the attorney general’s office, the belief is well nigh inescapable that the Idaho attorney general’s office may be muted, even compromised, in its advocacy for the Legislature and legislative power,” the petition states.