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Idaho legislature gets officially involved in court battle over anti-abortion bill

The Idaho Supreme Court building in Boise.
Idaho Judicial Branch
The Idaho Supreme Court building in Boise.

The Idaho Legislature will defend an anti-abortion bill before the state’s Supreme Court, after being granted permission to get involved in the case.

Senate Bill 1309 deputizes civilians to chill abortions through civil lawsuits. The law was set to take effect April 22, but it is currently on hold as the Idaho Supreme Court considers a challenge from Planned Parenthood and a Valley County obstetrician.

A petition, filed by outside attorney Daniel W. Bower of Nampa on behalf of House Speaker Scott Bedke and President Pro Tem of the Senate Chuck Winder, sought to give the legislature the power to defend SB 1309’s constitutionality before the court.

The petition argues that the top Republicans in the state House and Senate don’t believe SB 1309 will receive a strong enough defense from Idaho Attorney General Lawrence Wasden and Governor Brad Little.

Bedke and Winder’s argument is rooted in two documents: an opinion from the state Attorney General’s office, and the letter Little issued when he signed SB 1309 into law in March.

The opinion, written in February by Idaho Deputy Attorney General Brian Kane, opined that 1309 would effectively ban abortions and would likely be found unconstitutional. In the signing letter, Little wrote that he felt the strategy behind 1309 would eventually prove “unconstitutional and unwise.”

“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,” a memorandum supporting the lawmakers’ petition reads. “[…]there is no escaping the powerful grounds for concluding that the Legislature needs its own, separate representation.”

Wasden has said his office is mounting a “vigorous defense” of 1309, and plans to continue doing so.

The Idaho Supreme Court granted the legislators’ petition without comment and gave Bowers until April 28 to submit briefs. No date for oral arguments has been set.

The challenge filed by Planned Parenthood and obstetrician Caitlin Gustafson argues 1309 violates the Idaho Constitution by taking enforcement power away from the executive branch and placing it in residents’ hands.

While Bedke is listed as a respondent in his capacity as Speaker of the House, he is also running for lieutenant governor this year. April 14, the same day the petition to join the case was filed, Bedke touted an endorsement from anti-abortion group Idaho Chooses Life.

“We need to protect Idaho from the liberal agenda to legalize abortions,” Bedke said in a statement announcing the endorsement.

Abortions have been legally available in the United States since the Supreme Court’s Roe v. Wade decision in January 1973.

Brandon Hollingsworth is your All Things Considered host. He has served public radio audiences for nearly twenty years, primarily in reporting, hosting and interviewing. His previous ports-of-call were WUOT-FM in Knoxville, Tennessee, and Alabama Public Radio. His work has been heard nationally on Morning Edition, All Things Considered, Here and Now and NPR’s top-of-the-hour newscasts.