BOISE, Idaho — This article originally appeared in the Idaho Press.
When the Idaho Supreme Court hears arguments Wednesday on challenges to far-reaching anti-abortion laws that are poised to take effect in Idaho later this month, two separate sets of lawyers will argue the state’s side, both at state taxpayers’ expense.
That’s because the Idaho Legislature filed to intervene in all three lawsuits challenging three separate anti-abortion laws passed in the past three years, and retained Nampa attorney Daniel Bower and Las Vegas attorney Monte Neil Stewart to argue specifically on the Legislature’s behalf. And lawmakers this year passed a new law to let either or both houses of the Legislature intervene in lawsuits challenging Idaho laws whenever they choose to do so.
The Idaho Attorney General’s office already is representing the state of Idaho in the abortion litigation, and its team has filed extensive briefing in the cases. It’ll also be at the high court making arguments on Wednesday.
“The Legislature has always felt like they had the authority to do it,” said Senate President Pro Tem Chuck Winder, R-Boise. “It was never in code. So the last legislative session put it into code.”
Asked if he thought the expense – the total cost isn’t yet known, and Bower and Stewart are each charging the state $375 an hour plus expenses – is worth it, Winder said, “From the standpoint of the briefing and the process we’ve gone through, yes. The proof will be in the pudding as to how the court rules and how it moves forward. I think we needed to do it. I think it was important to stand up for the laws the Legislature passed.”
“This is a very important case,” Winder said. “Every life matters.”
The high court’s justices on Wednesday will hear a single hour of arguments on three key points in at least two lawsuits filed by Planned Parenthood. The first lawsuit challenged SB 1309, which the court has put on hold while the lawsuit’s pending and which allows relatives of a fetus aborted after 6 weeks gestation to sue doctors for minimum $20,000 damages. The second challenges Idaho’s “trigger law,” which will make all abortion a felony in Idaho, with just three narrow exceptions, starting in late August, now that the U.S. Supreme Court has overturned Roe v. Wade. That second lawsuit claims the trigger law violates the Idaho Constitution and the Idaho Human Rights Act.
Planned Parenthood also filed a third lawsuit last week, targeting a 2021 anti-abortion law, but as of late afternoon Monday, the court hadn’t yet ruled on whether it’ll also be addressed in Wednesday’s arguments.
Planned Parenthood, the state, and the Legislature all have submitted briefing on the court’s three questions, with much of it focusing on who will be harmed most if the laws are stayed or go right into effect.
Deputy Idaho Attorney General Megan Larrondo wrote on behalf of the state that the state will “suffer grave harm if the court stays a duly enacted law pending disposition of this lawsuit. The lives of preborn children, which the State recognizes as extant and valued, will be lost.”
Bower and Stewart, on behalf of the Legislature, wrote that if the court stayed both SB 1309 and the “trigger” law, “Idaho would immediately become the anything-goes Wild West of abortion practice.”
Attorney Michael Bartlett, on behalf of Planned Parenthood, wrote that the trigger law “unconstitutionally treats women – who would be forced to carry a pregnancy to term, give birth, and unwillingly become a parent – differently than men, who bear no equivalent burden.” He also argued that SB 1309’s private-lawsuit enforcement mechanism is unconstitutional and violates the separation of powers guaranteed by the Idaho Constitution.
The three key questions the court wants explored:
• Should the court put both laws on hold while the two cases are pending?
• Should the two cases be consolidated into a single one?
• Should either or both of the cases be transferred down to the district court level for trial before being taken up by the high court?
All three sides agreed on that final question, answering an unequivocal “no.” All argued that the issues raised are matters of law that are properly decided by the state’s highest court, not referred down to lower courts for arguments and decisions that could then be appealed to the Supreme Court. But that’s where the agreement ends.
The state argued that the two cases should be consolidated into one and dismissed, or if not, then scheduled for argument together on the same day. Planned Parenthood wrote that the two cases shouldn’t be consolidated into one, because they have only one overlapping argument, and either case could be decided on other grounds without getting into that argument.
That one argument: That the Idaho Constitution “violates the fundamental right to privacy in making intimate familial decisions by forcing pregnant Idahoans … to carry their pregnancies to term regardless of the individual private circumstances confronting each family.” Planned Parenthood argues that a long string of Idaho Supreme Court precedents has found the Idaho Constitution treats procreation and parental control as “fundamental rights.”
Both the state and the Legislature argue that the U.S. Supreme Court’s decision to overturn Roe v. Wade, the landmark 1973 ruling that recognized a constitutional right to abortion nationwide, and the subsequent 1992 decision Planned Parenthood v. Casey, negated all those arguments. “All of these arguments are invalid now that Roe and Casey have been overruled,” Larrondo wrote.
The Legislature’s brief, which runs for 22 pages, declares that it “adopts and incorporates the argument set forth in the State’s brief” on each of the key points. It also declares Planned Parenthood’s arguments “baseless,” and is particularly critical of the organization’s objections to SB 1309, the Texas-style law authorizing relatives of an aborted fetus to sue doctors, describing one of the arguments as “defamation.”
“The petitioners’ briefs’ approach, in essence, is to paint a picture of a lawless, uncontrollable mob, consisting in part of rapists’ brothers, embroiling innocent medical providers in unmeritorious litigation and further injuring them with bad-faith litigation tactics beyond the control of our district courts. False picture,” Bower and Stewart wrote.
SB 1309 wouldn’t allow a rapist whose crime resulted in the aborted pregnancy to sue, but would allow that rapist’s relatives to sue. “The petitioners’ brief’s regrettable crack about ‘a rapist’s estranged brother’ … is beneath contempt,” Bower and Stewart wrote, “because it imputes the rapist’s evil to his brother and thereby denigrates the brother’s humanity. That brother has lost a niece or a nephew. That is a ‘distinct and palpable’ injury.’”
Bower and Stewart also filed a 64-page brief defending SB 1309 on its merits, though the court isn’t yet taking up that issue. In that brief, they wrote, “What is the moral value of a preborn child? In an utterly misguided and now obviously doomed attempt to end contention and bring peace relative to that moral question, Roe took its resolution away from all Americans acting democratically and left the answer with the woman making the decision to abort or not.” They wrote that the Idaho Legislature “has every right” to return that “moral question ... to where it belongs, the democratic process.”
Winder said, “It’s certainly what we, as the speaker and the pro-tem, hired them to do, and that was brief the challenges brought on by Planned Parenthood.”
House Speaker Scott Bedke wasn’t available for comment on Monday.
“I thought it was a good brief,” Winder said. “I think it was well-thought-out, and gives the court some specific encouragement in how to rule.”
The Idaho Legislature created the Legislative Legal Defense Fund in 2012, and and has spent nearly $10 million from the fund since then. Lawmakers deposited $4 million in state general funds into it in 2021. The fund, which will be tapped to pay for the additional legal representation and is spent at the discretion of the House speaker and Senate president pro tem, has a current balance of just under $3.4 million, according to legislative budget records.
Stewart, 73, is the founding president of the Marriage Law Foundation, and is the former U.S. Attorney for the state of Nevada and a former special assistant attorney general and counsel to the governor of Utah. Bower is a former deputy Idaho attorney general and civil litigator who is a partner in the firm of Morris Bower & Haws.
“We wanted to intervene, so we had to hire outside counsel,” Winder said. “We tried to find counsel that was experienced. Monte Stewart is a senior member of the team, has had a lot of experience with Supreme Court briefings and these types of social issues. So we felt they were the best available attorneys to do this.”
He added, “Planned Parenthood is the one that initiated the process, and all we’re trying to do is defend the laws that were passed. If they hadn’t brought the lawsuits, we wouldn’t be spending the public money."
This article originally appeared in the Idaho Press, read more on IdahoPress.com.
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