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Idaho sued over law banning abortion after 6 weeks pregnancy

The Idaho House of Representative voted to approve a Texas-styled bill banning abortions after six weeks of pregnancy by allowing potential family members to sue a doctor who performs one, on Monday, March 14, 2022, at the Statehouse in Boise, Idaho.
Keith Ridler
The Idaho House of Representative voted to approve a Texas-styled bill banning abortions after six weeks of pregnancy by allowing potential family members to sue a doctor who performs one, on Monday, March 14, 2022, at the Statehouse in Boise, Idaho.

BOISE, Idaho (AP) — A regional Planned Parenthood organization has filed a third lawsuit over Idaho's anti-abortion laws and the latest targets the state's ban on abortions for pregnancies beyond six weeks of gestation.

Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky was joined by family medicine Dr. Caitlin Gustafson in the lawsuit filed Monday.

They are asking the Idaho Supreme Court to overturn the ban because they say it is vague and unconstitutional. They also want the high court to hear arguments in the case on Aug. 3 — the same day the court is scheduled to hear arguments in the other two lawsuits.

Idaho, like many Republican-led states, has several anti-abortion laws on the books, creating a legal quagmire now that the U.S. Supreme Court has overturned the landmark abortion rights case Roe v. Wade.

In court filings, Planned Parenthood said the ban on abortions after six weeks, often dubbed a “heartbeat ban,” is likely to go into effect first on Aug. 19, because it was written to be “triggered” 30 days after any federal appellate court upholds a similar ban somewhere in the United States.

That trigger happened last week when the 11th U.S. Court of Appeals allowed a restrictive 2019 abortion law in Georgia to take effect.

The Georgia and the Idaho laws ban abortions once a vaginal ultrasound can detect electrical activity in the embryonic cells that may eventually develop into a heart. That happens as early as six weeks into a pregnancy — before many people know they are pregnant.

“Not satisfied with criminalizing abortion once, the Legislature did it twice (in 2020 and 2021) — and then, for good measure, added a private right of action as well in 2022, hoping to make that unconstitutional ban effective through a bounty hunter system of private enforcement,” attorneys for Planned Parenthood wrote in court documents.

The reproductive health organization also sued in June over Idaho's total abortion ban passed in 2020. That law automatically goes into effect around Aug. 25, 30 days after the U.S. Supreme Court issued its formal judgement stripping decades-old constitutional protections for abortion in the U.S. Though the nation's highest court made that ruling earlier this year, the formal judgment was issued on Tuesday.

Planned Parenthood sued in March over Idaho's newest anti-abortion law. The 2022 law allows potential relatives of a fetus or embryo to sue medical providers who perform an abortion. The law prohibits rapists from suing, but allows rapists' relatives to sue.

The multiple lawsuits are necessary because of “the piecemeal and unlawful way in which the Idaho Legislature has attempted to ban abortion,” Planned Parenthood wrote.

The group said the six-week ban violates the Idaho Constitution's guarantee of the fundamental right to privacy, the equal protection clause and the Idaho Human Right Act's prohibition against sex discrimination. Planned Parenthood also contends the law is unconstitutionally vague.

The six-week ban only allows abortions in a few narrow exceptions — medical emergencies and cases of rape or incest that have been reported to law enforcement, as long as the pregnant person provides a copy of the police report to the person performing the abortion. The law defines a medical emergency as when a pregnant woman needs an immediate abortion to prevent death or the risk of substantial, irreversible damage to a major bodily function.

Health care providers who violate the ban face up to five years in prison.

The medical emergency provision is impossible to interpret, Planned Parenthood wrote in court documents, and challenges and delays in getting police reports render the rape and incest exception mostly meaningless.

“It would be very difficult, if not impossible, for me to implement the medical exception and provide care to a pregnant person whose life may be at risk,” said Gustafson, the family medical specialist.

She added: “For example, women can sometimes die or suffer long-term harm if they do not receive an abortion following placental abruption, an infection, or the onset of preeclampsia, but none of these is certain to cause death or those consequences if the woman does not receive an abortion.”

The Idaho Attorney General's office has not yet filed a response to the latest lawsuit over the six-week abortion ban, but the state's attorneys have maintained in the other court cases that it is in the government's interest to ban abortions and that state Legislatures have the right to enact abortion-related policies. That means the ballot box, not the courts, is the appropriate place to go for a remedy, state officials have said.

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