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Idaho ordered to pay $376K after losing lawsuit over anti-abortion measure

The state of Idaho has again been ordered to pay hundreds of thousands of dollars in attorney’s fees after losing a court battle over the Legislature’s latest anti-abortion law.

The latest bill – which comes in a lawsuit over Idaho’s so-called fetal pain law and other abortion restrictions – brings the state’s total tab to more than $1 million spent defending abortion restriction laws since 2000.

“The sense that I get from people in the office is that the abortion cases are fairly expensive,” said Bob Cooper, spokesman for Idaho Attorney General Lawrence Wasden. “The advocates of the legislation would say that it’s a worthwhile expense.”

In the most recent case, U.S. District Judge B. Lynn Winmill ruled that the state owed more than $376,000 to attorneys for Jennie Linn McCormack. The Pocatello woman successfully sued and overturned some abortion restrictions last year after she was charged with a felony because police said she had an illegal abortion.

Still, both sides have agreed that Idaho won’t have to pay that bill immediately because an appeal over some aspects of the case is still pending in the 9th U.S. Circuit Court of Appeals. If the state wins that appeal, it could reduce the amount it owes McCormack’s attorneys. But if Idaho loses, it could result in a double-down of sorts with the state ordered to pay McCormack’s appellate costs, as well.

It’s a dilemma the Idaho Attorney General’s office faces often: Lawmakers pass a law – sometimes even after they’re warned it likely won’t pass constitutional muster – and a resident eventually sues. When the state loses, the Idaho Attorney General’s office usually has to pay the winner’s related costs.

Before the McCormack case, the state tallied about $365,000 in its own expenses defending abortion restriction laws in three separate lawsuits since 2000. Idaho had to pay an additional $446,000 in attorneys’ fees to the plaintiffs in those three cases, which involved a parental consent law, a partial birth abortion law and a law that would have denied Medicaid coverage for medically necessary abortions.

The Idaho Attorney General’s office had lower expenses in the McCormack case, about $5,500, in part because the state’s attorneys didn’t argue over the merits of the fetal pain law. Instead, they focused their defense on challenging whether McCormack’s attorney had standing to fight the law.

That’s because the state’s attorneys had weighed in on the constitutionality of the fetal pain law before it was ever enacted by the Legislature. They found it lacking.

“We did review the statute at the request of a legislator, and basically, we told them the pain-capable unborn child protection act was inconsistent with the viability standard ... that it would likely be held unconstitutional,” Cooper said.

It’s the Legislature’s job to make policy, and the attorney general’s responsibility to defend state law in the courts – as long as there is a plausible legal claim to defend, Cooper said.

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