The Idaho Senate passed legislation Wednesday to ban abortions once a fetus has reached 20 weeks.
Republican Sen. Chuck Winder's measure relies on disputed evidence of when a fetus begins feeling pain and cleared the GOP-dominated Senate on a 24-10 vote.
The measure now goes to the House and if it becomes law, Idaho could follow Nebraska in banning abortions after 20 weeks despite an Idaho attorney general opinion that found the bill unconstitutional and doctor concerns that it could force women to deliver babies suffering from rare-but-deadly diseases that leave them little chance of survival outside the womb.
Sen. Joyce Broadsword, of Sagle, was among three Republicans who joined the Senate's seven Democrats in opposition to the measure. Broadsword argued the legislation would result in costly litigation and forced lawmakers to choose between their morals and their legislative ethics.
"We're passing legislation that we know is unconstitutional, that we know we're going to end up in court with," Broadsword said.
In the past decade, Idaho has spent more than $730,000 to defend restrictive abortion laws that were stricken down by the courts. Those costly rulings have prompted legislative leaders in recent years to require that abortion-related legislation be reviewed by the Idaho attorney general's office.
Last month, the agency told Winder his measure was "unconstitutional under the Fourteenth Amendment to the United States Constitution insofar as it proscribes some non-therapeutic abortions even before a fetus has reached viability," in an opinion from Steven Olsen, the chief of the agency's civil litigation division.
The constitutionality of Nebraska's law has so far not been challenged in the courts and anti-abortion lawmakers in several other states _ Iowa, Indiana, Kentucky, Oklahoma, Minnesota and Florida _ are contemplating virtually identical fetal pain legislation.
Proponents say the goal is to go state-by-state to deny abortion doctors a refuge to perform such procedures.
During a hearing in Senate State Affair Committee last week, Winder assembled a group of out-of-state medical and legal experts to convince lawmakers that a fetus 20 weeks after fertilization will suffer during an abortion and that a ban on such procedures will survive the courts.
"I think it's worthwhile for us to consider. I think anytime we're dealing with the life of an unborn we need to consider that," said Winder, of Boise, during the Senate floor debate.
Evidence of when fetuses begin feeling pain is disputed, with the American Congress of Obstetricians and Gynecologists saying it knows of no legitimate evidence showing a fetus can ever experience pain. Authors of a British study also contend pain perception begins at 24 weeks.
Idaho's bill is backed by groups such as Idaho Chooses Life and the Roman Catholic Diocese of Boise. It would ban elective procedures after 20 weeks, except when the mother's life is at risk of death or "substantial and irreversible physical impairment," or when an abortion is necessary to preserve the life of an unborn child such as a twin
Such abortions are rare in Idaho, and account for only 6 of the total 1,650 procedures performed in Idaho in 2009.
Much of the criticism during the Senate debate centered on a provision in the bill allowing the father of the unborn child to pursue legal action. In response to a query from Sen. Dan Schmidt, a Moscow Democrat, the attorney general's office found that the "father of the unborn" could include a rapist.
Sen. Sheryl Nuxoll, R-Cottonwood, countered this wouldn't be an issue under the bill.
"Why would a rapist want to come to court when he would be judged for committing a crime?" said Nuxoll, who further reasoned that if a woman was raped and became pregnant, she would have time before the fetus reached 20 weeks to decide whether to keep the baby.
Democratic Sen. Elliot Werk, of Boise, offered a fierce rebuttal.
"I can't believe what I'm hearing on the floor today, that we are willing to provide a legal remedy to rapists because we don't think it will be an issue," Werk said. "That is utterly disrespectful of our population ... I heap my scorn on this bill."
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