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Heather Scott

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BOISE — Two Republican lawmakers are preparing a bill to repeal the section of Idaho’s homicide law that excludes abortion from prosecution and assert that the state has a right to nullify any federal laws or court rulings making abortion legal.

Reps. Heather Scott, R-Blanchard, and John Green, R-Post Falls, released a draft copy of their “Idaho Abortion Human Rights Act” on Tuesday. The bill’s statement of legislative intent says it would protect Idaho law enforcement and officials from being directed by the federal government to allow abortions, saying the state “has the authority to nullify federal laws that would allow abortions.”

The bill says the attorney general “shall monitor this state’s enforcement of Chapter 40, Title 18, Idaho Code (i.e., Idaho’s homicide law) in relation to abortion. The attorney general shall direct state agencies to enforce those laws regardless of any contrary or conflicting federal statutes, regulations, executive orders, or court decisions.” It says any federal attempt to override the bill “is in violation of (the state and U.S. constitutions) ... and is therefore void.” And, it says the state may not take part in responding to any federal suits challenging the act.

In a news release accompanying the bill, Scott and Green said they aren’t trying to “establish a test case for federal judicial review.” Instead, they believe the U.S. Supreme Court precedents legalizing abortion are themselves unconstitutional, and therefore the state shouldn’t abide by it. They said abortion is “the chief means of depriving unborn Idahoans of the most fundamental of all human rights, which is the right to life.”

The bill, which has not been introduced yet, speaks to two issues that come up fairly frequently in the statehouse — abortion and a state’s right to go against federal law. While a majority of members of Idaho’s 4-to-1 Republican Legislature oppose abortion and have voted for some restrictions on it over the course of the past few sessions, the idea of nullification has had less support in recent history.

“Obviously we find this bill very problematic,” said Mistie Tolman, Planned Parenthood’s Idaho director. “It seems to be both a personhood bill and a nullification bill all rolled into one. And despite voters’ (rejecting) these personhood bills all across the nation, this is just another thinly veiled attempt by these politicians to restrict women’s access to reproductive health care.”

Tolman said she worries the bill could lead to banning some forms of birth control, such as intrauterine devices and the “morning-after pill.” Also, she said, it doesn’t contain an exemption for abortions performed in cases of rape, incest or to save the mother’s life.

Idaho lawmakers, like those in many other red states, have tried in recent years to pass laws restricting abortion. Some of these have led to lawsuits. Two are in court right now — Planned Parenthood is challenging a law that passed last year requiring health care providers to document a long list of possible health complications resulting from abortions, as well as an older law saying only licensed physicians can perform abortions. A couple of years ago, legislators repealed a law banning the use of telemedicine for abortions after the state lost in court.

“It’s interesting that the (representatives) always seem to think they know more about our Constitution than the federal government and our court system,” Tolman said.

While many Republican lawmakers favor in principle increased state and decreased federal power, attempts to outright defy federal laws or court rulings haven’t gone very far. Rep. Paul Shepherd, R-Riggins, has been a major proponent of the idea. A bill of his setting up a process for Idaho lawmakers to void federal laws and court rulings made it to the House floor last year, where it was voted down 29-40.

Reporter Nathan Brown can be reached at 208-542-6757. Follow him on Twitter: @NateBrownNews.

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