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Are Idaho’s Establishment Republicans Undermining Idaho’s Heartbeat Law?


Idaho has joined more than a dozen other states in passing a Fetal Heartbeat bill, prohibiting abortions after a “pre-born’s” heartbeat can be detected. The law’s legal mechanism is modeled after a similar bill in Texas. Namely, by providing a punitive safeguard in defense of life, it creates a civil action where family members of the “preborn child” can sue the abortionist of not less than $20,000. Idaho’s bill passed with overwhelming majorities in Idaho’s House and Senate. Governor Brad Little signed the bill into law on March 13.


On Wednesday March 30, Planned Parenthood petitioned the Idaho Supreme Court asking that the law be found “unlawful and unenforceable under the Idaho Constitution.”


This is a twist. Roe v. Wade began the long march of pro-abortion decisions where the federal courts voided state abortion restrictions under the national constitution. But Texas’s Heartbeat bill received a pretty favorable hearing with sympathetic optics at the United State Supreme Court in November 2021. Justices appear likely to uphold the Texas law.


Idaho’s establishment seems to oppose the Heartbeat Bill and may be unwilling to give it a solid legal defense, despite their expressed support for the pro-life cause.

Planned Parenthood seems to be betting that Idaho’s Supreme Court will give a more favorable hearing to the pro-abortion position than in the United States Supreme Court or the national judiciary itself.


Planned Parenthood may be right. Idaho’s establishment seems to oppose the Heartbeat Bill and may be unwilling to give it a solid legal defense, despite their expressed support for the pro-life cause.


First, there is Attorney General Lawrence Wasden, who issued an analysis and an advisory opinion against the Heartbeat bill while the legislature was deliberating. In both documents, Wasden argued that the Heartbeat bill violated Idaho’s Constitution. Planned Parenthood’s brief generally follows Wasden’s argument . The Planned Parenthood brief even quotes Idaho’s Attorney General’s Office’s opinion twice to show that the law should be declared unconstitutional under Idaho’s Constitution (see p. 2, 9).


Wasden will now be defending the law that he has called unconstitutional under the Idaho Constitution. This will be awkward. Planned Parenthood’s attorneys will be using Wasden’s opinion to the legislature against Wasden’s argument in the court.


Wasden’s analysis and advisory opinions to the legislature are filled with assertions and half-truths.


Idaho’s old anti-abortion law was overruled when the United State Supreme Court declared it, along with all other state laws against abortion, unconstitutional in Roe v. Wade in 1973. No Idaho court has ever ruled on the constitutionality of abortion under Idaho’s Constitution. The issue of abortion is undecided under the Idaho Constitution, but Wasden repeatedly implies that previous court decisions in Idaho make the Heartbeat bill unconstitutional.


In the analysis sent to Sen. Patty Ann Lodge, the Attorney General’s Office concludes that the Heartbeat bill “could be found to violate the Equal Protection Clause of. . . the Idaho Constitution.” The reasoning put forward to support this claim presents not a single example of any Idaho court finding abortion restrictions against Idaho’s Equal Protection clause.


None of Wasden’s case law supports his conclusion that the law is an “unconstitutional delegation” under Idaho’s Constitution. An unconstitutional delegation is generally when a legislative or law-making power (eg. declaring a state of emergency) is delegated to an executive. Wasden puts forward the novel legal claim that the Heartbeat bill delegates government’s enforcement power to private citizens. The analysis does concede that this doctrine has not been “developed in Idaho” at all.


Gov. Little seemed to argue that Idaho’s constitution recognized the right to abortion, when that is not the case. Little’s signing statement sounded more like a veto statement.

The second member of the Idaho establishment undermining the Heartbeat law is Gov. Brad Little. Little issued a statement about the law as he signed it. Like Wasden, Little worried that the “civil enforcement mechanism” was “unconstitutional and unwise.” When private citizens can use fines to punish abortionists who exercise a “judicially recognized constitutional right,” Little said, it “undermines our constitutional form of government” and “weakens our collective liberties.” Little seemed to argue that Idaho’s constitution recognized the right to abortion, when that is not the case. Little’s signing statement sounded more like a veto statement.


Third, we have the Idaho Supreme Court. There is good reason to think that Idaho’s Supreme Court, filled with establishment Republican appointees, will follow the hints from Idaho’s establishment Republican leaders like Gov. Little and Attorney General Wasden. In August 2021, under similar circumstances, the Idaho’s Supreme Court held in favor of leftist group Reclaim Idaho and against the conservative reform of the initiative process. Precisely how the Idaho Supreme Court became filled with justices more liberal than establishment Republicans is a story for another day.

Passing the Fetal Heartbeat bill is the pro-life movement's greatest accomplishment in Idaho. It would be a great irony if its greatest defeat would come at the hands of Idaho’s Republican Establishment that pro-lifers have supported for decades.


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