Freshman North Idaho lawmaker makes slew of pitches

A new law would amend Idaho’s criminal abortion law to define the procedure as “deliberately” killing a “live embryo or fetus.”

The amendment is intended to clarify that Idaho’s near-total abortion ban doesn’t apply to pregnancies in which the fetus has already died, the bill’s sponsor, Sen. Scott Herndon, told R-Sagle. These parameters include ectopic pregnancy, when a fertilized egg implants outside the uterus when the fetus has died.

Herndon said he spoke to medical providers who questioned whether Idaho’s “criminal abortion law” prohibits treating ectopic pregnancy.

“It gives clarity to our medical community that when we talk about our criminal abortion ban, we are not talking about treating an ectopic pregnancy,” Herndon said. “If we accept that definition, you must intend to kill a live embryo or fetus.”

The Republican-dominated Senate State Affairs Committee, which is split along party lines, voted Monday to hold a public hearing on the abortion definition amendment bill.

North Idaho freshman lawmakers introduced four bills Monday, including two on abortion, one on transgender people’s access to bathrooms and another on strengthening the state’s stand-your-ground laws. The Senate State Affairs Committee rejected one of the proposals, which would have removed legal defenses for abortion providers if a pregnancy they terminated was due to rape or incest.

Proposal to remove abortion exemptions rejected

Herndon is responsible for the Idaho Republican Party’s new hard-line stance on abortion. His successful proposal during last year’s state convention changed the party program to support “the criminalization of all murders by abortion” without exception.

In the second week of the legislative session, Herndon sought to overturn two of the state’s three legal defenses for abortion providers. The law provides legal protections for providers when they terminate a pregnancy that endangers the mother’s life or was the result of rape or incest.

Herndon’s failed bill — which he likened to Martin Luther King Jr.’s promotion of civil rights — would have eliminated defenses against rape and incest.

“The essence of this legislation is to provide equal legal protections for all children conceived,” Herndon said on the day the nation honors the slain civil rights leader. King “has spent 13 years advancing the civil rights of people based on certain characteristics, and this is doing the same. It tries to promote civil rights based on certain characteristics.”

Senate Minority Leader Melissa Wintrow, D-Boise, “respectfully” but “strongly” disagreed with Herndon’s comparison of his intentions with King’s “goal of equal protections over racism and segregation.”

Wintrow asked Herndon if a 13-year-old who was raped, “one of the most intimate and violent experiences she could have in her life,” would “be forced to carry this pregnancy to term.”

Herndon said, “The use of the word ‘force’ is actually the problem.” Under his proposal, the state would “not exert undue influence or pressure on anyone related to the circumstances,” he said.

“Some people might describe the situation you’re talking about as an opportunity to have a child under these horrific circumstances, if the rape actually happened,” Herndon said.

All but one committee member, Sen. Ben Toews, R-Coeur d’Alene, voted to reject Herndon’s proposal to remove the exemptions.

Senate President Pro Tem Chuck Winder, R-Boise; Majority Leader Kelly Anthon, R-Burley; and Deputy Majority Leader Abby Lee, R-Fruitland, were absent.

New anti-transgender law introduced

Herndon presented two more bills on Monday. It would prevent public authorities from requiring contractors to give transgender people access to toilets that match their gender identity.

When former President Barack Obama issued an executive order adding “sexual orientation” and “gender identity” to the federal Civil Rights Act in 2014, it forced federal contractors to “designate multi-purpose toilets or lockers for their employees based on the Provide gender identity or sexual orientation,” Herndon said.

“The net effect of this is that by signing this contract, they are confirming that they would allow a biological male who identifies as a female to use biological toilet facilities or female changing rooms,” he said.

While the state cannot change federal law, Herndon’s bill would prevent state and local governments from requiring contractors to have access to toilets, showers or locker rooms “on a basis other than biological sex.”

The State Affairs Committee voted Monday to introduce the bill. Wintrow voiced the only dissenting vote.

In recent years, Idaho legislation has banned transgender women and girls from participating in female school sports and barred transgender people from changing the gender on their birth certificates. A federal court ruled that the Birth Certificate Act is unconstitutional while a court challenge to the Athletes Act is pending.

Bill would strengthen the stand-your-ground law

Herndon’s fourth bill, unveiled on Monday, would plug “holes” in the state’s stand-your-ground law. Applicable law provides legal protection for individuals who have used violence to protect themselves, others or their property from a threat of violence.

“It’s a good law of lawful self-defense,” Herndon said. “There may be a few holes in it that we’ve seen in national-level cases over the past few years.”

Herndon’s bill would require a court to grant a suspect a pre-trial immunity hearing for using or threatening to use force in self-defense within 14 days of his arrest. Prosecutors would also have to present “clear and compelling evidence” – higher than the normal standard for “probable causes” – to prosecute an accused who alleges he acted in self-defense.

“It basically gives our defendant an opportunity to get into court a little earlier, to get the state to raise its standards, to prove he wasn’t acting in self-defense before he blasts all the way into a trial” said Herdon.

The bill would also allow a judge to award legal costs to a defendant if a jury finds he acted in self-defense.

Herndon said the bill was inspired by Kyle Rittenhouse — an Illinois man who was found not guilty of murder after shooting three men and killing two during a protest in Kenosha, Wisconsin, spurred on by the killing of a black man the police.

Mark McCloskey, Herndon said, also inspired the bill. McCloskey and his wife were charged with gun crimes in 2020 after waving guns outside their St. Louis home as people walked by to protest the killing of George Floyd by Minneapolis police. The McCloskeys pleaded guilty and were later pardoned by Republican Missouri Gov. Mike Parson.

The committee voted unanimously to introduce the bill.

Wintrow said she supports the bill’s passage but has “many questions,” including law enforcement officials’ opinions.

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