by Ruth Brown, Idaho Reports
The Idaho Supreme Court opinion upheld Idaho’s abortion ban in an opinion released Thursday.
The Court’s opinion, authored by Justice Robyn Brody, also allows the civil enforcement mechanism to go into effect.
Chief Justice Richard Bevan and Justice Gregory Moeller concurred with Brody’s opinion.
In her opinion, Brody wrote that the petitioners failed to convince the court that the right to an abortion was implied and deeply rooted in the Idaho state constitution’s Inalienable Rights Clause.
“Since Idaho attained statehood in 1890, this Court has repeatedly and steadfastly interpreted the Idaho Constitution based on the plain and ordinary meaning of its text, as intended by those who framed and adopted the provision at issue,” Brody wrote. “That is our duty as the judicial branch: to sustain the rule of law—not to promote our personal policy preferences.”
Brody also said there is no proof that the authors of Idaho’s constitution intended to protect a right to abortion.
“To the contrary, the relevant history and traditions of Idaho show abortion was viewed as an immoral act and treated as a crime,” Brody wrote. “Thus, we cannot conclude the framers and adopters of the Inalienable Rights Clause intended to implicitly protect abortion as a fundamental right.”
Brody also pointed out that the opinion is an interpretation of the Idaho Constitution, not an endorsement of the laws themselves.
“Importantly, nothing about this decision prevents the voters of Idaho from answering the deeply moral and political question of abortion at the polls,” Brody writes. “For example, if the people of Idaho are dissatisfied with these new laws, they can elect new legislators.”
Brody’s writing criticized the arguments of Planned Parenthood on why there is a personal right to abortion.
“Here, it could be claimed that many of the above laws, such as those prohibiting personal drug use, prostitution, incest, bigamy, polygamy, gambling, domestic violence, and underage drinking significantly invade the “universal” notions of “bodily autonomy,” “intimate family decision making,” and “privacy” which Petitioners have used to conceive their purported right to abortion,” she wrote.
Justices Joseph Stegner and Colleen Zahn each wrote separate dissents.
In Zahn’s dissent, she wrote “contrary to the majority’s assertion, my decision today does not elevate statutes to the status of constitutional provisions. Instead, it recognizes the explicitly granted, inalienable constitutional rights to life and safety and also looks to Idaho’s history and traditions to determine whether those inalienable rights encompass a fundamental right to obtain an abortion to preserve the life or health of the mother. My decision simply acknowledges and gives effect to this history and tradition. A woman’s pregnancy—and whether that pregnancy is terminated—drastically impacts her rights to both life and safety. Pregnancy and childbirth are indisputably fraught with danger.”
The court heard arguments in the case, brought by Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky, in October, challenging the state’s abortion ban after the court declined to stay the implementation of three of Idaho’s abortion laws in August of 2022. Planned Parenthood’s attorneys also challenged legislation that passed in 2022 involving a civil enforcement mechanism for abortion.
In Idaho, all abortions are currently illegal, with exceptions for life of the mother, rape and incest, though the pregnancies resulting from rape and incest must be reported to police.
That law, known as the trigger law, passed in 2020 and was written to go into place if the U.S. Supreme Court overturned Roe v Wade, which it did in June of 2022.
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.
The state called it federal overreach when the DOJ interfered with state legislation.
Arguments between the state and Planned Parenthood in the case revolved around multiple pieces of anti-abortion legislation and their impact on pregnant women and abortion providers.
The Fetal Heartbeat Act and Civil Enforcement
Senate Bill 1309 and follow-up legislation SB 1358 would allow family members of a fetus to sue abortion providers, should a pregnant woman voluntarily have an abortion. That could include cases where the pregnancy resulted from rape, excluding the father of the fetus but including his family.
Prior to SB 1309’s passage, the Idaho Attorney General’s Office wrote an opinion in February of 2022 stating the bill was likely unconstitutional. When it did pass, Gov. Brad Little signed it, but harshly criticized it in his transmittal letter.
“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 some say the fetus has a detectable heartbeat.
It’s worth note that the court repeatedly questioned whether the trigger law from 2020 effectively makes the heartbeat act void, because the trigger law bans all abortion with rare exceptions.
A statement from Planned Parenthood said “the consequences of this decision will fall largely on people who already face the greatest barriers to health care due to this country’s legacy of racism and discrimination, including Black, Latino, and Indigenous communities, people with low incomes, LGBTQ+ people, immigrants, and people living in rural areas.”
“This is a dark day for the state of Idaho, but our fight is far from over,” said Rebecca Gibron, CEO of Planned Parenthood Great Northwest, Hawaii, Indiana, Kentucky. “Planned Parenthood will never back down. We will keep fighting with everything we’ve got to restore Idahoans’ right to control our bodies and our lives. No matter what happens, Planned Parenthood is here for you. Our doors are open in Idaho, and our teams are ready to help you get the care you need, even if that means traveling out of state.”
Idaho Democratic Party Chair Lauren Necochea released the following statement in response to the opinion.
“Every pregnancy is unique and people seek abortion care for a range of deeply personal reasons that the government should not question. Patients, not judges or politicians, should make their own personal decisions when it comes to medical care,” wrote Necochea. “This decision has made it even clearer that Idahoans cannot rely on the courts to protect their reproductive freedoms. The only way we can win back our reproductive freedoms is by electing Democrats across the state.
“Idaho’s extreme abortion ban, passed by the Republican-controlled legislature and signed by Gov. Little endangers the lives of pregnant Idahoans and undermines the duty hospitals have to treat and stabilize sick patients. These Republican politicians have made it clear in their party platform they would rather let a pregnancy kill a person than allow them to receive an abortion,” wrote Necochea.
“Idaho Democrats will continue to fight for the reproductive rights and freedoms of all Idahoans for as long as it takes. We stand with the majority of Idahoans who believe people should have access to all of the reproductive health care options available, including abortion,” she said.
Idaho GOP Chairman Dorothy Moon issued the following statement:
“Today, in a 3-2 decision, the Idaho Supreme Court followed the basic cannons of constitutional interpretation and found that our constitution does not include an implied right to abort the unborn,” Moon wrote. “We applaud this decision and, more importantly, the reasoning that undergirds it. Our fight is not over, however. We ask all Idahoans to remain vigilant and committed to defending life.”
The Idaho Family Policy Center issued a statement Thursday afternoon from its president Blaine Conzatti, who sponsored some of the legislation.
“As we have been saying for months, our Idaho Heartbeat law is constitutionally, scientifically, and morally sound,” Conzatti said in a written statement. “We were confident that our Heartbeat law would withstand judicial scrutiny, and today settles that debate once and for all. Because of these two pro-life laws, thousands of Idaho babies will receive the opportunity to live their lives and reach their highest potential.
“I especially want to the legislative sponsors who worked tirelessly to protect these preborn children—Rep. Steven Harris and Sen. Patti Anne Lodge on the Heartbeat law, and Rep. Megan Blanksma and Sen. Todd Lakey on the Trigger law.”
“The pro-life movement has worked toward this day for decades with sweat, tears, and sacrifice. Today is a great day for precious preborn babies in Idaho!” Conzatti wrote.
Idaho Reports will have more on this week’s program. Idaho Reports airs Fridays at 8 pm on Idaho Public Television.