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Planned Parenthood takes Idaho to court over Texas-styled abortion law

The nonprofit reproductive health care provider called the law an “unprecedented power grab” by the Idaho Legislature and said it bans abortions in the state before most patients even know they are pregnant.

(CN) — Planned Parenthood petitioned Idaho’s Supreme Court on Wednesday to block the state's controversial law that bans abortions in the state after six weeks.  

The petition — filed against the state exactly a week after Republican Governor Brad Little signed off on the law — railed against the bill on a number of grounds, calling it both unconstitutional and inherently dangerous for patients in Idaho looking to get an abortion.

The nonprofit took especially heavy aim at the enforcement feature of the bill, which forbids Idaho officials and prosecutors from enforcing the abortion ban. Instead, similar to the ban in Texas the bill was modeled after, the law relies on family members of the fetus to levy lawsuits at providers who carried out an abortion.

With the Idaho government all but stripped of its power to enforce its own law, Planned Parenthood says the measure unfairly pushes the burden of enforcement unto everyday Americans, many of whom could bring lawsuits without showing any actual harm.

“SB 1309 is no ordinary civil enforcement mechanism,” the petition says. “It is embedded in the State’s criminal code, yet it explicitly deprives the Executive of the authority to enforce the State’s prohibition. Distinct from a tort or any other civil remedy provision, which exists to remedy a wrong done specifically to an individual claimant, SB 1309 exists to dangle a carrot in front of ordinary citizens to enforce the State’s policies and preferences where the State explicitly cannot, and where some of these citizen enforcers suffer no actual harm.”

The petition points to the fact that the Idaho governor himself voiced concerns over the enforcement structure of the law. During the signing of the bill, Little said he stood behind the underlying policy of the bill but feared that the enforcement mechanism would “in short order, be proven both unconstitutional and unwise.”

With enforcement of the bill in the hands of private citizens instead of officials, the petition says the law didn’t even properly curtail who and when can file an enforcement lawsuit.

While the law bars any suit from a person who caused the pregnancy through rape or incest, the family members of that rapist still have the green light to go to court. Some claimants can also sue a medical provider up to four years after an abortion procedure — a statute of limitations twice as long as those governing wrongful death lawsuits.

With these dangerously loose guidelines on who can enforce the ban coupled with pricy penalties for providers who are taken to court, Planned Parenthood says it leaves medical professionals in the state with no choice but to comply with the unlawful measure.

“Because medical professionals who provide abortions after approximately six weeks would be at risk of ruinous civil litigation that could result in significant financial penalties of at least $20,000 plus the private plaintiffs’ attorneys’ fees and costs, SB 1309 leaves Petitioners and medical professionals no choice but to cease abortion services after six weeks of gestation in Idaho,” the petition states.

Regardless of the enforcement style of the law, Planned Parenthood, the largest provider of reproductive health services in the state, says banning abortions after just six weeks flies in the face of sound science.

Not only do few patients actually discover they are pregnant within the first six weeks, but six weeks is also far too early to detect actual viability. While an ultrasound can typically detect cardiac activity by six weeks, viability doesn’t occur until around the 24 week mark — roughly four months after the cutoff for abortions in Idaho.

For Idahoans who still want or need an abortion, challengers say the new law puts them in a dangerous position. Nearly three quarters of those who seek an abortion have poverty-level incomes, and the health risks and medical costs associated with having an abortion increases with gestational age. This means that those looking for other abortion options are going to be put in a challenging and potentially dangerous situation.

“Consequently, SB 1309 will put many pregnant people in Idaho to a difficult choice: carry the pregnancy to term, attempt to self-manage an abortion without access to accurate medical information, or undertake burdensome, time-consuming, and expensive travel to a different state.”

The petitioners ask the Idaho Supreme Court to block all enforcement of the law and deem it invalid under the state constitution. They request the court move to toss the law by at least April 21 of this year, one day before the law is set to go into effect.

The Idaho governor’s office declined a request for comment.

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