Attorney general’s opinion finds abortion bill likely unconstitutional

By Ruth Brown, Idaho Reports

Senate State Affairs moved forward an anti-abortion bill that would allow a woman’s family members to sue an abortion provider for damages without the woman’s permission.

The bill, SB 1309, adds a civil penalty option to the “Fetal Heartbeat Preborn Child Protection Act”  that passed last legislative session. The bill passed out of committee after more than two hours of public testimony on Wednesday. The bill prohibits an abortion after a “fetal heartbeat” can be detected by a physician. There are exemptions for medical emergency, rape and incest, though in the case of rape or incest, the woman must report the crime to police.

SB 1309 allows the father of the “pre-born child,” a grandparent, a sibling or an aunt or uncle of the fetus to sue a provider for damages of at least $20,000 if they provide an unlawful abortion.

In the case of rape or incest, the person who impregnated the woman would not be able to bring a suit.

Blaine Conzatti, president of the Idaho Family Policy Center, pitched the bill and told the committee that similar legislation passed in Texas and it withstood challenges in court. 

He asked the committee to pass the bill, saying it could save “more than 1,000 babies every year from the horror caused” by abortion.

The Idaho Attorney General’s Office issued an opinion on the bill, at the request of Sen. Grant Burgoyne, D-Boise, who serves on State Affairs. 

The opinion states “Should a court adjudicate a challenge to the law on the merits of the restriction on abortions, it would likely be found unconstitutional.”

According to a copy of the opinion, Burgoyne asked the attorney general if SB 1309 violates the Equal Protection Clause of the U.S. Constitution and Idaho Constitution. 

“There is a risk that a reviewing court could conclude that the proposed civil enforcement action violates the U.S. and/or the Idaho Constitutions by treating abortion providers differently than other medical providers who violate other state laws. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution requires that all similarly situated people be treated alike,” according to the opinion. 

The 9-page opinion also expressed concern about the bill’s impact on the separation of powers because the bill precludes the executive branch from enforcement. 

“This separation allows the legislative department the lawmaking and policy functions of government, while the executive is charged with enforcing and executing the legal enactments of the legislative branch. Under the proposed legislation, the legislature arguably would be stripping the executive branch of its constitutional charge in violation of the constitutional separation of powers,” the opinion states.

SB 1309 now must go before the full Senate for a vote. Conzatti said a trailer bill is expected for the legislation, but as of Wednesday, the trailer bill hadn’t been published.

<strong>Ruth Brown</strong> | Producer
Ruth Brown | Producer

Ruth Brown grew up in South Dakota and her first job out of college was covering the South Dakota Legislature. She’s since moved on to Idaho lawmakers. Brown spent 10 years working in print journalism, including newspapers such as the Idaho Statesman and Idaho Press, where she’s covered everything from the correctional system to health care issues. She joined Idaho Reports in 2021 and looks forward to telling stories about how state policy can impact the lives of regular Idahoans.

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