By Ruth Brown, Idaho Reports
The Idaho Supreme Court heard arguments Thursday on the constitutionality of laws passed by the Idaho Legislature banning or further restricting abortion.
All lawsuits, brought by Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky challenge the state’s abortion restrictions after the court declined to stay the implementation of the laws in August following arguments.
Justices fired a variety of heated questions at attorneys, ranging from whether a woman’s health matters to the rights of a fetus.
Arguments revolved around separate pieces of legislation and their impact on pregnant women and abortion providers.
The trigger law
Much of the discussion focused on the total abortion ban, which passed in 2020. The so-called trigger law was written to go into place if the US Supreme Court overturned Roe v Wade, which it did this summer. Idaho’s ban includes exceptions for life of the mother, as well as pregnancies resulting from rape and incest, but the rape or incest must be reported to police.
The ban was the subject of a recent request for injunction by the U.S. Department of Justice. U.S. District Judge B. Lynn Winmill granted a narrow injunction, prohibiting only prosecution of abortions in emergency situations at hospitals that receive Medicare funds; Most abortions are still illegal in Idaho.
What’s now deemed an illlegal abortion conducted in Idaho could result in the abortion provider being charged with a felony and facing mandatory prison time.
In that case, the plaintiffs argued the bill violates the Idaho Constiutional right to privacy in making intimate familial decisions, the Idaho Human Rights Act’s prohibition against sex discrimination and the Idaho Constiution’s due process clause because it is vague.
Alan Schoenfeld argued on behalf of Planned Parenthood stating the total ban violates a woman’s right to bodily autonomy and the state’s right to procreation.
Justice Greg Moeller interjected, asking if procreation was the opposite of abortion.
Schoenfeld said women should have the right to choose whether or not to procreate and whether or not to bear a child.
Arguments went on to circle around whether a state’s interest in a fetus should begin at the time the fetus can viable outside of the womb.
Justice Robyn Brody asked if there were any rights to the fetus.
“There may be a state interest at a point of viability,” Schoenfeld said, but added there should be no interest when the fetus is still entirely dependent on the woman.
Deputy Attorney General Megan Larrondo argued on behalf of the state, saying the Idaho Constitution does not provide a constitutional right to abortion and Schoenfeld’s arguments about vagueness in the law were inadequate.
Justice Colleen Zahn questioned Larrondo about the constitutional right to liberty.
“Does the right to liberty not include the right to make decisions about my own body?” Zahn asked.
Larrondo responded saying that right stops when “that right takes a human life,” in reference to a fetus.
Justice John Stegner questioned Larrondo flattly about the exemptions in the ban for rape, incest and the life of the mother. There is no exemption for the health of the mother.
“So we don’t care about the woman’s health?” Stegner asked.
“I disagree with that,” Larrondo said, adding the state’s concern was when treating the mother would take the fetus’s life.
“So the life of the fetus overcomes the life of the mother?” Stegner further asked.
Yes, when that health came at the expense of the life of the fetus, she said.
Zahn further asked Larrondo about if she believed that theory contradicts Idaho’s faith healing law.
In Idaho, there is an exemption under the injury to child criminal law that allows guardians to decline to seek medical treatment for ill children if they say it is against their religious beliefs. This includes declining care even if the child is gravely ill.
Larrando argued that faith healing law has religious exemptions and the non performance of procedures is different than the performance of procedures that result in death.
The Heartbeat Act And Civil Enforcement
Planned Parenthood also challenged legislation that passed in 2022 that involves a civil enforcement mechanism for abortion.
Senate Bill 1309 and follow-up legislation SB 1358 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.
The plaintiffs previously argued that in an opinion before SB1309 passed, the Idaho Attorney General’s Office wrote that the bill was likely unconstitutional. Gov. Brad Little signed the bill even though his transmittal letter expressed serious concerns with the language.
“Ultimately, this legislation risks retraumatizing victims by affording monetary incentives to wrongdoers and family members of rapists,” Little wrote in the transmittal letter.
The civil enforcement mechanism was 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, when the fetus has a detectable heartbeat.
The court repeatedly questioned whether the trigger law makes the Heartbeat Act void, because the trigger law bans all abortion while the Heartbeat Act allows up to six weeks of pregnancy.
It would also make it a felony for a provider to conduct an abortion after that point.
Schoenfeld argued that the law was vague and a violation of the equal protection clause because it subjects abortions providers to laws unique among health care providers.
“Idaho’s history and tradition, from territorial days, to this very hour have been much more pro-life than the nation generally,” argued Monte Stewart, attorney for the Legislature, saying the court should consider that.
He also argued that if the court found abortion to be a fundamentail right, it would then have to legislate the details around abortion and “there is no harder issue to legislate.”
Chief Justice G. Richard Bevan asked about the Legislature’s role in the hypothetical.
“What if we declare it a fundamental right and leave it to them to figure it out?” Bevan asked.
“You will immediately become and thereafter remain legislators on the issues,” Stewart said.
Moeller pressed Stewart on the civil enforcement mechanism, which allows family members of a fetus to sue an abortion providers, asking “What is the cause for the uncle of a rapist?” to sue.
Stewart argued “He’s still a human being… he’s just lost a niece or nephew.”
The Supreme Court will issue a written opinion. It does not have a deadline to do so.