In abortion lawsuit, Idaho attorney general won’t give ‘zealous’ defense, Legislature says

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A sign reading “My body my choice” is taped to a hanger taped to a streetlight in front of the Idaho State Capitol Building on May 3, 2022. People gathered in downtown Boise at both City Hall and the Statehouse to protest the news of the Supreme Court draft leak indicating that Roe vs. Wade and Planned Parenthood v. Casey will be overturned. (Sarah A. Miller/smiller@idahostatesman.com)

This story originally published Aug. 12 in the Idaho Capital Sun.

The Idaho Legislature filed a response brief in U.S. District Court on Tuesday stating it should be a named party in the lawsuit filed by the U.S. Department of Justice because the Idaho attorney general’s office will not offer a “full, zealous, thorough-going defense” of the state’s abortion trigger law.

Kriss Bivens Cloyd, a spokesperson for the Idaho attorney general’s office, said the office cannot comment on legal strategy and that the office will vigorously defend the state’s laws with a defense that is grounded in law and fact.

The Department of Justice filed the lawsuit against Idaho on Aug. 2, saying the state’s ban on nearly all abortions — which is scheduled to go into effect on Aug. 25 — is unconstitutional and violates the federal Emergency Medical Treatment and Labor Act. That law requires hospitals that receive payments for the federal Medicare program to provide medical care to stabilize all patients who come to the hospital with a medical emergency.

The federal government’s position is that Idaho’s trigger law puts health care providers in an untenable position of risking criminal prosecution under the state law or subjecting themselves to enforcement actions under federal law.

The Legislature, represented by attorneys Daniel Bower and Monte Neil Stewart, filed a motion to intervene in the case on Monday. The Legislature is already a named party in the three state lawsuits filed by Planned Parenthood challenging abortion laws, but the U.S. government’s attorneys, including Samuel Bagenstos and Paul Rodríguez, said it is unnecessary and would complicate the expedited nature of the case.

Bower and Stewart’s initial motion to intervene in the case cited law passed by the Idaho Legislature in 2022 codifying a right for the Legislature to intervene in cases related to constitutionality of a statute. But the federal government said case law does not compel the court to allow the state Legislature to intervene, and that it should instead submit “friend of the court” briefs and split time arguing before the court with the Idaho attorney general’s legal team.

“The Legislature has failed to carry its burden of demonstrating both that it ‘has a significantly protectable interest related to the subject of the action’ and that its interest ‘will not be adequately represented by existing parties,’” the Department of Justice’s brief said.

In its response to the government filed on Tuesday, Bower and Stewart wrote that they have already started making plans for appearances at hearings, including intent to subpoena Ada County Prosecutor Jan Bennetts, to give testimony about prosecutorial discretion with regard to emergency room abortions. In parentheses, the brief says that intention will be news to Bennetts.

Bower and Stewart also wrote they have communicated with Idaho Attorney General Lawrence Wasden’s office to learn “to what extent, if at all, that office intends and is prepared to present evidence countering the government’s position on the material issues of fact. What we learned is that that office has no clear present intent or plan to do anything of the sort.”

Bivens Cloyd said that statement is inaccurate and an overstatement or misunderstanding of the state’s legal strategy.

“The authors of the brief were not authorized to speak on behalf of the attorney general or the state of Idaho, nor disclose any legal strategy conversations,” she said.

A hearing is scheduled before Judge B. Lynn Winmill at 9:30 a.m. Aug. 22 in Boise, where Winmill will hear arguments on the federal government’s preliminary injunction that would prevent the trigger law from going into effect on Aug. 25.