by Idaho Reports staff
The Idaho Supreme Court has declined to stay abortion bans set to go into place later this month as it waits to hear arguments on the merits of the statutes. The state’s highest court will hear arguments on three separate lawsuits challenging Idaho’s abortion bans on September 29.
In a split decision, the court lifted a stay on the so-called Heartbeat Ban and its civil enforcement mechanism, and declined to put a stay on a complete abortion ban with narrow exemptions. Justice Robyn Brody authored the majority opinion, with Chief Justice Richard Bevan and Gregory Moeller concurring; Justice John Stegner concurred in part and dissented in part, with Justice Colleen Zahn agreeing with Stegner.
The court found that in order to stay the laws, petitioners must demonstrate two factors: irreparable harm if the court refused to stay the laws, and substantial likelihood of success on the merits of the case.
Because the U.S. Supreme Court overturned Roe v Wade in June, Planned Parenthood couldn’t prove that its arguments would succeed without arguing the merits of the case, the opinion said.
“In the post-Dobbs landscape, Petitioners cannot meet this [second] burden and as such, are not entitled to the drastic relief they pursue,” Brody wrote for the majority.
The dissenting justices disagreed with this interpretation of court rules, arguing that demonstration of irreparable injury alone should be enough to warrant preliminary relief.
“We—both Idaho’s citizens and this Court— now find ourselves in uncharted legal waters, waters we should navigate with great caution and care,” Stegner wrote in his dissent. “If ever there was time for circumspection, it is now.”
During arguments on Aug. 3, the court considered whether it should consolidate the two lawsuits, whether it should stay the laws while it considers it, and whether it should remand the challenges to a lower court. Arguments revolved around the constitutionality of the legislation, rights to privacy and vagueness in the new laws, with plaintiffs claiming the new laws caused confusion for medical providers and endangered women.
The arguments focused on two statutes: One, the Total Abortion Ban, commonly referred to as the trigger law, passed in 2020, bans all abortions with narrow exemptions for pregnancies resulting from rape and incest, but the rape or incest must be reported to police. Nationally and in Idaho, the majority of rapes go unreported to police. The trigger law had a provision that would allow it to go into effect in the case of the US Supreme Court overturning Roe v Wade, which happened in June.
The law would criminalize any medical professional who performs an unlawful abortion, making it a felony punishable by two to five years in prison. Without a stay, the law is scheduled to go into effect on Aug. 25.
The second challenged law would allow family members of a fetus to sue abortion providers. That could include cases where the pregnancy resulted from rape, excluding the father of the fetus but including his family. When Gov. Brad Little signed SB 1309 and SB 1358, his transmittal letter criticized the bills and questioned their constitutionality.
The civil litigation option added to a bill the Legislature passed in 2021. The so-called “Fetal Heartbeat Preborn Child Protection Act” effectively bans any abortion after six weeks of pregnancy, with rare exceptions.
Friday’s order lifts a stay on the fetal heartbeat law.
The challenges in front of the Idaho Supreme Court are separate from the U.S. Department of Justice’s challenge of Idaho’s abortion ban, announced on Aug. 2. That hearing is scheduled in front of Judge Lynn Winmill on Aug. 22.
