Idaho lawmakers have intervened in a lawsuit, challenging the state's abortion ban

The legal team representing Planned Parenthood of the Greater Northwest and the Hawaiian Islands leaves the United States District Court building in Boise, Idaho, On Thursday, June 6, 2019. Image Credit: AP.

The Idaho Supreme Court has granted state lawmakers the right to intervene in a lawsuit challenging the constitutionality of a law passed earlier this year prohibiting abortions after six weeks of pregnancy.

The court granted Republican House Speaker Scott Bedke, Republican Senate President Pro-Tem Chuck Winder, and the Legislature's request to participate in the case without comment on Monday.

The law is based on a Texas law that is enforced through lawsuits in order to avoid constitutional challenges in court. The law was set to go into effect on Friday, but it was temporarily halted by the court after a lawsuit was filed by a regional Planned Parenthood organization, which called the law an "unprecedented power grab by the Idaho Legislature."

According to the law, the father, grandparents, siblings, aunts, and uncles of a "preborn child" can each sue an abortion provider for at least $20,000 in damages within four years of the abortion. Rapists are not allowed to sue under the law, but rapists' relatives are.

Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, and Kentucky, which operates 40 health centers across six states, filed the lawsuit late last month. The law is unconstitutional, according to Planned Parenthood, because it violates the Idaho Constitution's requirement of separation of powers by removing the executive branch's "authority and duty to ensure that the laws are faithfully executed."

An analysis by the Idaho attorney general's office concluded that a court might find the then-proposed law "an unconstitutional delegation of the Governor's enforcement power to private citizens and violate the separation of powers under the Idaho Constitution," according to the lawmakers' request to intervene — with their own private attorneys using taxpayer dollars.

Lawmakers also claimed that when Republican Gov. Brad Little signed the bill, which had passed the House and Senate with veto-proof majorities, he injected himself into the legal debate by writing in his transmittal letter that he feared the law's "novel civil enforcement mechanism" would be "proven both unconstitutional and unwise" in a short period of time.

Lawmakers argued that the Legislature should be allowed to defend the law because of the attorney general's analysis and because the law put the Legislature in conflict with the executive branch.

The lawmakers wrote that Planned Parenthood's arguments challenging the constitutionality of the abortion law "directly implicate the Legislature's authority" and "place the Legislature in conflict with the Executive Branch and prior statements of the Idaho Attorney General's office." "As a result, the Legislature has its own unique interests in this proceeding and seeks to safeguard those interests through intervention."

When the state issues over its laws, the Idaho attorney general's office is frequently called upon to defend the state's position, even if the attorney general's office had previously warned lawmakers that the legislation would almost certainly be found unconstitutional. In some cases, however, the Legislature has hired private lawyers to represent lawmakers in court.

After lawmakers passed laws that were found to be unconstitutional, the state has been sued several times in recent history. Idaho has lost lawsuits over abortion restrictions, laws targeting transgender residents, and laws restricting resident-led voter initiatives, to name a few, costing taxpayers millions of dollars in legal fees.

In the abortion case, legislators stated that they are willing to follow the court's timelines and that their request to intervene would not cause a delay.

The court earlier this month denied the Roman Catholic Church of Idaho's request to intervene in the case without comment.