Because Freedom Can't Protect Itself

2005 Legislative Report

Water, tax incentives and the budget dominated the 2005 legislative session.  Weighty issues indeed, but that didn’t stop the usual plethora of sometimes small, sometimes large, proposals affecting civil liberties.   Here’s a quick summary of the high (and low) points:

Discrimination – Senators Gerry Sweet (R, Meridian) and Curt McKenzie (R, Nampa) proposed Senate Joint Resolution 101 to amend the Idaho Constitution to state:  “Only a union of one man and one woman shall be valid or recognized as a marriage in this state. This state and its political subdivisions shall not create or recognize a legal status similar to that of marriage.”

Recall that a similar proposal failed last year when the Chair of the Senate State Affairs Committee courageously decided to hold the bill without a hearing.  The ACLU opposed this year’s amendment, drafted by the Alliance Defense Fund (a national Christian organization that “provides the resources that will keep the door open for the spread of the Gospel through the legal defense and advocacy of … traditional family values”) as a blatant attempt to deny gays and lesbians any legal protection of their committed relationships.  It singles out gays and lesbians for discriminatory treatment and denies them equal protections of the laws.

Following a long, overcrowded and chaotic hearing in Senate State Affairs, the proposal narrowly made it out of committee on a 5/4 vote.  As a constitutional amendment, a 2/3 majority of the full Senate was necessary to pass the amendment to the House and place it on the November, 2006 ballot.  To defeat the proposal, we needed 12 courageous Idaho Senators to vote against it.  I am delighted to report that the proposal failed on the Senate floor when 14 Senators stood together and spoke in a loud, clear voice saying, “Idaho doesn’t need this nonsense”

The ACLU was clearly instrumental in defeating the proposal.  A coalition of organizations, including the ACLU, the Idaho Women’s Network, Your Family Friends and Neighbors, Parents and Friends of Lesbians and Gays and the Interfaith Alliance, met regularly to develop strategies.  We spoke often to individual Senators about the dangers of the proposal and provided information to expose the proposal for what it was – unnecessary and divisive.   We wrote an op-ed detailing reasons legislators should oppose the amendment that was published in the Idaho Statesman the day before the amendment was introduced in the legislature.  We arranged to have Mary Li and Becky Kennedy, the first same-sex couple to be legally married in Oregon, to come to Idaho and speak to the media, legislators, and at public meetings, and they arrived in Boise from Portland the day the amendment was introduced.  The result?  Idaho is the first, and so far the only, state to defeat a proposed state constitutional amendment prohibiting same sex marriage.  Way to go Idaho!  

Persons with Disabilities:  House Bill 249 amends the Idaho Human Rights Act to prohibit discrimination against Idahoans with disabilities in public accommodations.  A central concept of civil liberties is that all individuals have the right to be judged on the basis of their individual capabilities, not the characteristics and capabilities that are supposedly shared by any group or class to which they may belong. Persons with disabilities have long been discriminated against in our society. This prevented them from exercising certain basic rights for which the ACLU has, on behalf of various other groups, vigorously and consistently fought. These rights include, among others, the right to education in an integrated environment, the right of equal access to employment opportunities, the right to vote, and the right to participate in civic, social, and recreational activities.

Persons with disabilities have been denied these rights in large measure because buildings and transportation facilities often are inaccessible to many persons with disabilities and rules and practices frequently exclude them from participation.  House Bill 249 was supported by many organizations and passed easily.

Immigrants:  Senate Bill 1105, brought by Canyon County Commissioner Robert Vasquez and the Idaho Association of Counties, would have denied county medical indigency assistance to undocumented immigrants.  The ACLU opposed this measure as it would have discouraged people from seeking necessary medical care and unduly involved hospitals and local government officials in immigration determinations.  The bill was held in the Senate Health and Welfare Committee. 

Reproductive Freedom  - Anti-choice forces at the Statehouse just can’t let a year go by without yet another attack on reproductive freedom.  The past eight years have seen bills restricting a woman’s right to choose.  This year was no exception.

The extreme anti-choice contingent proposed House Bill 196, the speciously titled “Woman’s Health Information Act” sponsored by Representative Ann Rydalch (R, Idaho Falls).  The stated purpose of the legislation is to “protect unborn children from a woman’s uninformed decision to have an abortion.”  The bill made such outrageous claims as “abortion providers … primary goal is to sell abortion services” and would have created burdensome and confusing requirements for both women and their physicians. This legislation was a thinly veiled attempt to frighten women contemplating abortion by requiring that physicians provide them with medically inaccurate information such as the increased risk of breast cancer following an abortion.  (Never mind the 2003 study by the National Cancer Institute which states “studies consistently showed no association between induced abortions and breast cancer risk” - apparently a few anti-choice advocates know more than eighty nine cancer research experts.)  

The rift exposed last year in the anti-choice community apparently has not healed.  Idaho Chooses Life, Generation Life, the Keep the Commandments Coalition and other extreme anti-choice groups support the bill, while more moderate anti-choice groups apparently withheld their support.  House Bill 196 was introduced in mid-February but never received a hearing   We hope, and believe, that the proposal was just too extreme – even for Idaho!

Following the legal victory in our challenge to Idaho’s 2000 and 2001 parental consent laws, anti-choice legislators made another attempt to “fix” Idaho’s fatally flawed scheme.  House Bill 351, sponsored by Representative Bill Sali (R, Kuna), yet again, places unconstitutional restrictions on young women seeking abortions.  The bill contains many of the same restrictions that the court struck down in our earlier challenge.  Despite its obvious flaws, it easily passed.  The bill does not protect the confidentiality of young women seeking judicial bypass and we are preparing a legal challenge. 

If you want to reduce abortions, how about increasing access to family planning?  Seems reasonable to most people – but wait … reason is sometimes hard to find in the Idaho legislature. 

Senate Bill 1140, co-sponsored by Senator Shawn Keough (R, Sandpoint) and Margaret Henbest (D, Boise) would have expanded Medicaid to provide family planning and other healthcare services to low income Idaho families.  For every dime spent by the State of Idaho, the federal government would have kicked in ninety cents.  Sounds like a good deal, right?  Yes indeed, according to the testimony of a broad coalition of physicians, nurses, hospitals, and public health and family advocates.  Better health care means healthier moms and babies.

The bill passed the Senate, but hit the wall of hardliners in the House who oppose reproductive freedom.  

According to anti-choice advocates, increased family planning services would be a way “for the government to get deeper into the sex-facilitation business” and would force poor women to take birth control.  The real problem, according to Representative Pete Nielsen (R, Mountain Home), is that we just aren’t stressing abstinence enough.  Representative Bob Ring (R-Caldwell), a retired physician, had this response: “Abstinence is not a good alternative for a 20-year-old married woman with a couple of children. It just does not work very well.”

Despite the overwhelming and knowledgeable testimony from the medical community, the House Health and Welfare Committee sided with anti-choice extremists and held the bill on a 8/4 vote. 

Criminal Justice  -  Legislators heard early in the session that Idaho’s prison system is nearing a crisis point - too many inmates, not enough beds and inadequate medical and mental health treatment.

Overcrowding leads to deterioration of facilities and to violence.  Inmate aggravation goes hand in hand with overcrowding.  Tensions rise and violence follows.  If you put too many prisoners in a space too small, sanitation declines.  Medical costs can soar because prisoners become unusually susceptible to disease.  Overcrowding is a serious problem, affecting not only inmates but prison staff as well.

Idaho’s “lock ‘em all up” policy has reached its limits.  Policy makers who want to be tough on crime must realize that being tough means doing what works and abandoning what doesn’t work.  Exploring options and seeking solutions is not being soft on crime, it’s being smart on crime. 

Representatives Bill Sali (R, Kuna) and Steve Smylie (R, Boise) introduced House Bills 210 and 211 which would have allowed certain inmates the incentive of early release.  If the goal of rehabilitation means anything, it should mean that the efforts of those who actively participate in their own rehabilitation should be recognized and rewarded.  Unfortunately, both proposals were held in committee.

Human Trafficking - Representative Donna Boe (D, Pocatello) sponsored House Concurrent Resolution 18  to  create an interim task force to study human trafficking in Idaho.  Human trafficking is a severe human rights violation affecting tens of thousands of victims nationwide.  Human trafficking often involves trafficking of women and children for sexual exploitation, exploitation of agricultural and sweatshop workers, as well as individuals working as domestic servants.  Is human trafficking a problem in Idaho?  Nobody knows for sure, and it’s time we at least looked at the issue.  The proposal passed overwhelmingly.

Discouraging Pre-Natal Care - Senator Denton Darrington (R, Declo) announced early in the session that he wanted to address the problem of “meth moms” by allowing felony child abuse prosecutions of pregnant women.  We quickly organized a coalition of health care providers and substance abuse counselors to meet with Senator Darrington and point out that the threat of criminal prosecution would only drive pregnant women with substance abuse problems away from the health care system, thereby increasing the risk to themselves and their pregnancy.  He introduced, and then tabled, Senate Bill 1218 this session, but it will no doubt be back next year.  We will meet with Senator Darrington and other interested parties over the summer and  advocate for increased treatment services, rather than incarceration, as a better approach to substance abuse problems.

Due Process – Senate Bill 1121, sponsored by Senator Bart Davis (R, Idaho Falls) sought to clarify some of the confusion existing in Idaho’s adoption laws.  Under current law, an unwed father who executes a voluntary acknowledgment of paternity becomes the legal father of the child – just as if he had been adjudicated the father of the child or was married to the mother at the time of the child’s birth.  Such an unwed father is entitled to notice if the mother of the child places the child for adoption.  The proposed legislation would have eliminated the notice requirement and carved a huge exception into the logical effect of a voluntary acknowledgment.  Men who executed a voluntary acknowledgement would be considered fathers for purposes of child support but would not be entitled to notice of adoption or termination of parental rights.  The ACLU opposed the bill as a violation of a father’s constitutionally protected interest in parenting his child.  The bill passed the Senate, but was held in the House Judiciary and Rules Committee.

Free Speech  -  Senate Bill 1174, sponsored by Brad Little (R, Emmett) requires any person, or organization, to file a disclosure report with the Secretary of State, that they have made, "any communication broadcast by television or radio, printed in a newspaper or on a billboard, directly mailed or delivered by hand to personal residences, or telephone calls made to personal residences, or otherwise distributed that unambiguously refers to a candidate" immediately prior to a primary or general election.  The ACLU opposed this legislation as far too broad a restriction on political speech as well as a violation of the constitutionally protected right to anonymous political speech.  Despite the acknowledgement that it perhaps wasn’t the best crafted legislation, it easily passed. 

USA PATRIOT Act – Some of the most alarming provisions of the USA PATRIOT Act are set to expire soon.  Senator Larry Craig has introduced  federal legislation, the Safety and Freedom  Enhanced (SAFE) Act, to curtail some of the most egregious provisions of the Patriot Act.  Congressman Butch Otter has introduced similar legislation in the House.  Representatives Tom Trail (R, Moscow) and Phil Hart (R, Athol) co-sponsored House Joint Memorial 7 which endorses the efforts of Senator Craig in amending the Patriot Act.  The proposal quickly gathered bi-partisan support and passed easily.  The Idaho legislature finally spoke in support of protecting essential civil liberties, while maintaining national security.  Yes, we can be both safe and free!