Idaho is the first state to follow Texas’ lead in banning abortions after a fetal heartbeat can be detected, with the unique enforcement feature of private lawsuits against abortionists. The private enforcement feature of the Texas law has frustrated abortion sellers who have tried several times – unsuccessfully – to get the U.S. Supreme Court to block it.
Idaho’s version of a Texas-style abortion ban was signed into law on March 23 and will go into effect on April 22. On March 30, Planned Parenthood filed a lawsuit directly with the Idaho Supreme Court in an unusual legal maneuver designed to obtain an order that would block the state’s lower courts from entertaining lawsuits against abortionists under the new law.
Called a “Verified Petition for Writ of Prohibition and Application for Declaratory Judgment,” Planned Parenthood’s lawsuit bypasses the Idaho trial courts and goes directly to the 5-justice state Supreme Court.
Why go directly to the state’s highest court?
Like Texas, Idaho’s heartbeat abortion ban specifically precludes any state officials’ involvement in enforcing the law. But in a slight divergence from the Texas law, Idaho allows only certain family members of the aborted baby – rather than any member of the public – to bring a civil lawsuit for damages directly against those involved in the abortion.
But like Texas, abortionists in Idaho have no public official they can identify in order to ask a judge for a preliminary injunction blocking that official from enforcing the law until a trial can be conducted on the constitutionality of the law.
So how could Planned Parenthood raise a Roe v. Wade constitutional argument against the Idaho or Texas law if they can’t seek an injunction?
Both the Idaho and Texas laws are designed so that can only happen after someone sues Planned Parenthood or other abortionist for committing an illegal abortion. They can raise their constitutional arguments at that point.
But here’s the risky part for Planned Parenthood. If it loses, it would pay the private citizen who sued it $10,000 in Texas, and $20,000 in Idaho.
Given that potential monetary downside, is it any wonder that Planned Parenthood wants to find a less risky way challenge the law?
Which brings us to Planned Parenthood’s latest legal maneuver in Idaho.
Since an injunction is unavailable to Planned Parenthood in Idaho for the same reason it unavailable in Texas, the abortion seller is attempting a somewhat questionable legal maneuver in requesting a “writ of prohibition” from the Idaho justices.
At the risk of diving too deeply into legal jargon, such a “writ” – another name for an order of the court – would, if issued by an appellate court such as the Idaho Supreme Court, tell a lower court that it cannot proceed in a pending case because it does not have “jurisdiction” over it, for one reason or another.
The problem for Planned Parenthood is, at this point, that there is no “pending” case in the lower courts for the state Supreme Court to block. Planned Parenthood will likely argue that there is no need for there to be a pending case, and it will be interesting to see how the justices of the state’s highest court resolve that issue.
This case would become moot if the U.S. Supreme Court overturns Roe v. Wade in the upcoming weeks as a result of its anticipated ruling in Dobbs v. Jackson Women’s Health Organization, which involves a challenge to Mississippi’s 15-week abortion ban. Should Roe be overturned, Idaho already has a trigger law on its books that bans all abortion from that point forward.
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