Abortion law struck down

Idaho's ban on so-called partial-birth abortion has been declared unconstitutional, after a court found that the law actually banned nearly all types of abortion, at every stage of pregnancy.

Then-Gov. Phil Batt signed the law in March 1998, despite two opinions from the Idaho attorney general declaring the abortion measure unconstitutional. Batt said then that he just wanted the "divisive and unproductive debate" about the bill to end.

The law never went into effect. It was blocked by a court within days after it was signed, just as similar laws around the nation have been blocked.

Proponents of the measure were bitter over the defeat Thursday. "We believe it's a sad day when the federal judiciary makes such a horrific and unimaginable ruling," said Nancy Bloomer, executive director of the Idaho Christian Coalition. "I don't think it's genuine to say, `Oh, it was just too broad.' There's obviously a problem in the judiciary," she said. Deputy state Attorney General David High said the decision will not be appealed.

"The decisions around the country indicate this is the way the courts are viewing this," High said. "We're not going to waste taxpayers' money on it."

Backers of the measure told lawmakers two years ago they wanted to ban a particularly gruesome late-term abortion technique that involves partially delivering a near-full-term fetus, then killing it. But the legislation Batt signed into law made no reference to the stage of pregnancy.

U.S. District Judge B. Lynn Winmill ruled that the wording of the law would also have banned the three most common and most safe abortion techniques performed in Idaho: suction curettage, dilation and evacuation, and induction. All are performed during the first or second trimesters of pregnancy.

Idaho law already bans late-term abortions.

By banning the safest methods for women, the law would have forced physicians performing abortions to turn to more dangerous techniques, such as hysterectomy, the court found. "The act bans the safest and most common methods of abortion used in Idaho and therefore imposes an undue burden on a woman's right to terminate her pregnancy," the judge wrote. The court also found several other reasons for ruling the bill unconstitutional: It lacks exceptions for times when the woman's health is endangered, and it imposes consent requirements for husbands and grandparents. "The purpose of a ban targeting certain abortion procedures but not others must be to steer doctors and patients to alternatives, a purpose that has nothing to do with preserving potential life," Winmill wrote.

Bloomer said she still plans to press for other abortion restrictions in Idaho, including parental consent requirements for teenage girls seeking abortions.

The lawsuit that overturned the abortion law was filed by the Idaho chapters of the American Civil Liberties Union and Planned Parenthood. Mary Kelly McColl, executive director of Planned Parenthood of Idaho, said, "Instead of spending valuable time and taxpayers' money on this divisive issue, legislators should be discussing ways to expand family planning that would prevent the need for abortion in the first place."

Attorney Kurt D. Holzer of the ACLU called the ruling "expected and inevitable. Anyone who looked at the statute when it was passed should have known it was unconstitutional."

Proponents of the bill pointed to a footnote of the U.S. Supreme Court's Roe vs. Wade decision, the 1973 case that legalized most early-term abortions. The footnote said the case didn't address a state law that banned the killing of a child in the process of being born. By arguing that abortion procedures essentially create a birth situation, they attempted to open a new front in the battle over abortion. Bloomer said she still hopes higher courts will uphold such laws. "I would hope that they would look at the moral side of the issue and defend the most vulnerable citizens, the babies."

Copyright 1999 Cowles Publishing Company
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