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Attorneys ask for temporary stop to new Idaho abortion reporting law

September 19, 2018

For roughly an hour Monday, attorneys in Boise’s U.S. District Court argued for and against a preliminary injunction blocking a new Idaho law requiring doctors to report extensive personal information to the state about women who have had past abortions.

The controversial law, which Idaho lawmakers passed this year, took effect July 1 after Idaho Gov. Butch Otter signed it into law in March. It requires health care providers to report to the state government information about any patient who received an abortion and later had one of the 37 “complications” listed in the law. Health care providers are required to provide a patient’s age, race, number of previous pregnancies, live births and previous abortions. If providers — including physicians and nurses — do not comply with the law, they face heavy penalties, including the loss of their ability to practice medicine, and jail time.

Attorneys for the American Civil Liberties Union and Planned Parenthood of the Great Northwest and the Hawaiian Islands filed a complaint against the state in July in U.S. District Court, calling the law unconstitutional because it could violate a patient’s privacy and also claiming it places an “onerous burden” on health care providers.

This month, the plaintiffs filed a motion requesting the judge issue a preliminary injunction — meaning the law would not be enforced while the matter is decided in court. U.S. District Court Judge David Nye has not yet ruled on that motion but took it under advisement after hearing the arguments Monday.

“Our major argument is that the statute is unconstitutional and is overly vague,” said Deborah Ferguson of the law firm Ferguson Durham, PLLC, Monday afternoon.

She is arguing the matter along with Planned Parenthood and the ACLU, and spoke in court for about 30 minutes Monday, she said.

A law with potential criminal penalties is required to be clear, she said, “so people who want to obey the law understand what’s expected of them,” but she pointed out that’s not the case here.

The 37 complications listed in the law can be interpreted in various ways and require “practitioners to guess whether and when they must report any of these occurrences,” according to the motion from the plaintiffs, which was the subject of argument Monday.

According to the motion, the complications “range the spectrum from death to a missed follow-up appointment,” and even a patient’s “emotional condition.”

Plus, Ferguson said after the hearing, all 44 prosecuting attorneys in Idaho would have the authority to prosecute health care providers under the law, in addition the Idaho State Board of Medicine and the Idaho State Board of Nursing.

“They could all have very different takes on it,” she said.

The Idaho Attorney General’s Office declined to comment on the case. But in documents filed with the court, government attorneys pointed out “abortion reporting has long been upheld as constitutional when a rational basis exists.”

“The information that a medical practitioner must report under the act provides the state with valuable information that protects public health and safety,” the attorneys wrote.

According to the written arguments, the reports would not be public records, and providers are also not to report a “patient’s name, Social Security number and other common identifiers and information that would make it possible to identify her.” The state also pointed out health care providers who perform abortions have been required “for years in Idaho” to report certain complications, but other health care providers were not required to do so.

“The act changes that,” the attorneys wrote.

Ferguson said Nye, the judge, asked questions of attorneys on both sides.

The judge will issue a written decision in the coming weeks.

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