House Bill 220 — Abortion, public funds

House Bill 220 — Abortion, public funds

by
Parrish Miller
February 23, 2021

Bill Description: House Bill 220 prevents the use of public money to fund abortions but makes numerous exceptions to comply with federal edicts. 

Rating: 0

Amendment Analysis: The Senate amendment to House Bill 220 does not change the bill's neutral rating, but the amendment does make the bill worse in two respects. The first change redefines "affiliate" as it applies to the bill. The original language defined an affiliate far more broadly than the revision, and this change allows government entities to enter into contracts and commercial transactions with individuals and entities that would have been considered an affiliate of an abortion provider under the original bill.

The second change is to fully delete the subsection titled "Right of Intervention" found in the original bill. This language allowed The Idaho legislature, by concurrent resolution, to "appoint one (1) or more of its members who sponsored or cosponsored this chapter in his official capacity to intervene as a matter of right in any case in which the constitutionality of this law is challenged."

This is a particularly important provision given the frequent reticence of the Attorney General to effectively defend conservative legislation challenged in federal court. The Senate's decision to delete this language weakens the bill considerably.

Does it increase government spending (for objectionable purposes) or debt? Conversely, does it decrease government spending or debt?

House Bill 220 creates Chapter 87, Title 18, Idaho Code, titled the "No Public Funds for Abortion Act." The bill's statement of purpose says the bill "ensures taxpayer dollars do not support the abortion industry by prohibiting the expenditure of taxpayer dollars to abortion providers."

The bill creates a definitions section and a number of subsequent sections detailing specific prohibitions on state expenditures. The prohibitions apply to the state and to counties, cities, public health districts, public school districts, and any local political subdivisions of the state. 

(It should be noted that these prohibitions all contain exceptions, which will be discussed in another section of this analysis.)

Among other things, government entities are prohibited from doing any of the following: 

  • "Enter into any contract or commercial transaction with an abortion provider or an affiliate of an abortion provider."
  • "Enter into any contract or commercial transaction with any health care provider or health care facility under the terms of which such health care provider or health care facility agrees to provide, perform, or induce an abortion."
  • Make available any "public funds" to be "used in any way to provide, perform, or induce an abortion; assist in the provision or performance of an abortion; promote abortion; counsel in favor of abortion; refer for abortion; or provide facilities for an abortion or for training to provide or perform an abortion."
  • Use "part of any tuition or fees paid to a public institution of higher education" to "pay for an abortion, provide or perform an abortion, provide counseling in favor of abortion, make a referral for abortion, or provide facilities for an abortion or for training to provide or perform abortion."
  • Use a "facility operated at a public institution of higher education or operated by a public school district" to provide or perform an abortion, provide counseling in favor of abortion, make a referral for abortion, or dispense a drug classified as emergency contraception (except in the case of rape).
  • Use a "public institution, public facility, public equipment, or other physical asset owned, leased, or controlled" by the state "for the purpose of providing, performing, or participating in an abortion."

Any "intentional violation of the provisions of this chapter by a public officer or public employee shall be considered a misuse of public moneys."

Taken together, the provisions of this chapter should reduce government spending for objectionable purposes. 

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Does it violate the principles of federalism by increasing federal authority, yielding to federal blandishments, or incorporating changeable federal laws into Idaho statutes or rules? Examples include citing federal code without noting as it is written on a certain date, using state resources to enforce federal law, and refusing to support and uphold the Tenth Amendment. Conversely, does it restore or uphold the principles of federalism?

Unfortunately, House Bill 220 contains as many exceptions as it does prohibitions, which significantly detract from both its message and its impact. 

Predictably, the bill exempts abortions performed when "the life of the mother is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself."

More concerning, the bill includes a blanket exemption for hospitals as well. 

Worst of all, the state bends the knee to the federal government by exempting all "contracts and commercial transactions" that are "subject to a federal law related to Medicaid."

As a matter of principle, Idaho's laws should not be conditioned on federal approval or contain exceptions that allow the federal government to override or supersede state statutes. 

Regarding House Bill 220, it is worth considering how many state-funded or state-subsidized abortions actually occur in Idaho that are not claimed to be medically necessary, performed in a hospital, or involve Medicaid funding. Will this bill really reduce government spending for objectionable purposes or is it just a feel-good bill, stuffed with so many exemptions and exceptions that any positive qualities it might have possessed are effectively nullified?

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