Mayor McLean, Boise City Council Make Boise a Sanctuary City for Abortion
Boise City Council voted 3-2 to approve RES 385-22 limiting the enforcement of Idaho’s abortion ban. The measure directs police to allocate their resources to every other priority in law enforcement but the crime of abortion.
Idaho has a state criminal code, passed by legislatures and approved by governors. This code governs the entire state, so that crimes like arson, conspiracies, burglary, bigamy and polygamy, and others are uniform across the state. Each part of the criminal code defines the crime and punishments for each specific crime. Local law enforcement is then charged with enforcing these laws. City police investigate. County sheriffs investigate. District attorneys and county attorneys accuse and prosecute. Judges oversee trials.
Idaho’s Criminal Code defines the physician or abortionist guilty of a felony called "criminal abortion" punishable by imprisonment if he or she performs an abortion.
On July 19, 2022, Boise City Council passed a resolution to stop Boise city police from enforcing Idaho’s law against criminal abortion. The city council’s resolution holds that “investigations for the purpose of prosecuting abortion providers will not be prioritized, and additional resources or personnel will not be assigned” to crimes of criminal abortion. The city will not cooperate with other entities to enforce Idaho's ban on abortion law either.
The City Council is not passing the law because the Boise Police Department is faced with a shortage of resources. The resolution was passed in order to undermine Idaho’s abortion ban, enshrined in its criminal code. Idaho's ban on abortion, the resolution reads, abrogates “the fundamental liberties of its people,” especially the “right to make reproductive health decisions for themselves.”
Three members of the city council supported the resolution, while two opposed it (Elaine Clegg and Luci Willits opposed).
The move provides sanctuary or a safe place for abortion providers in Boise. While Planned Parenthood has moved its abortion clinics out of Boise (Planned Parenthood’s only Idaho clinics are in Meridian and Twin Falls), the city of Boise’s passage of this resolution opens the door for its return. Other providers could move in as well.
Local law enforcement, under political control, is essential to the entire enterprise of fighting crime in Idaho. Boise’s decision to exempt itself from enforcing crimes that its leadership disagrees with is a dangerous challenge to the state government’s control over the criminal code.
Prosecutors in New York City, Milwaukee, St. Louis and elsewhere are embracing different standards of enforcement for favored clients. In San Francisco, for instance, local police do not investigate crimes like thefts of property valued at less than $950, which has led to lots of shoplifting.
The City of Boise, in exempting abortionists from investigation, is similarly asserting the power to direct the enforcement of laws in favor its preferred clients—in this case, abortionists. This is a direct assault on the sovereignty of the state to make the laws in general and on Republican rule in Idaho.
What can and should the state do to protect its criminal code? What can be done to enforce Idaho’s abortion ban?
These are two separate questions, though their answers overlap. Idaho’s abortion ban could be enforced through Idaho’s Heartbeat Bill. Importantly, the Heartbeat bill works without the need for police to enforce laws against “criminal abortion” and without the need for public prosecutors to press charges. The Heartbeat bill, passed in March 2022, allows private citizens to bring a civil action against an abortionist for ending the life of a “preborn child.” Abortionists can be sued and fined for not less than $20,000 for performing an abortion. Idaho’s ban on abortion might still be “enforced” even if the city of Boise stays a sanctuary city.
In fact, the private enforcement in the law is precisely why Gov. Brad Little hesitated to sign the law. Gov. Little worried that the “civil enforcement mechanism” was “unconstitutional and unwise” because it uses private citizens to punish abortionists instead of law enforcement. The Heartbeat bill does not look as “unwise” in the face of Boise’s lawless actions.
Still, the Heartbeat bill is not enough, for two reasons. First, the Idaho Supreme Court is a wild card, stacked, as we have argued, with liberals who are as liable to find a right to abortion in Idaho’s Constitution as not. The Heartbeat bill might not survive its trial before Idaho’s Supreme Court. If it is found unconstitutional by Idaho’s Constitution, then Boise would be able to operate as a sanctuary city for abortion.
Second and as important, relying solely on the Heartbeat bill does not touch the principle that the City of Boise is asserting, namely its power and right to pick and choose which parts of the state criminal code to enforce. Therefore, the state government must meet the challenge posed by Boise’s mayor and city council either through preempting the city’s laws with state law enforcement, by revising the relationship between city and county law enforcement, or punishing Boise for its failure to enforce the laws by withholding significant funding from the city.
At stake in Mayor McLean’s challenge to Republican rule is the status of life itself in Idaho—and other matters like the rule of law as well.