Idaho Supreme Court rejects challenge, rules abortion ban can begin on August 25

By Dave Andrusko

Late Friday the Idaho Supreme Court ruled that the state’s comprehensive ban on abortion could begin at August 25 while challenges are being adjudicated.

“The Court issued the decision based on three lawsuits filed by a Planned Parenthood chapter and a local doctor this year to block three Idaho laws that were to take effect if the U.S. Supreme Court were to overturn Roe v. Wade, which it did in June,” according to Isabella Grullón Paz. “The petitioners had asked the court not to enforce the abortion restrictions until the suits were settled.”

In its Friday ruling, the justices consolidated the three laws into one.

In their first pass, before Roe v. Wade was overturned on June 24, the plaintiffs had argued the laws were unconstitutional. They then shifted gears, arguing the laws violated the Idaho Constitution and the Idaho Human Rights Act, Paz wrote.

But the Idaho Supreme Court found that Planned Parenthood and the doctor failed to show that allowing enforcement of the laws would cause “irreparable harm.” The state’s highest court said “the plaintiffs also didn’t have enough evidence that they had a ‘clear right’ to a remedy, or that they were likely to win on the merits of the case”—that is, the petitioners did not meet the standard of “substantial likelihood of success” in overturning the laws.

Writing for the three member majority, Justice Robyn Brody explained “What petitioners are asking this Court to ultimately do is to declare a right to abortion under the Idaho Constitution when — on its face — there is none.” She added, “In fact, before Roe announced a federal constitutional right to abortion in 1973, abortion had been a longstanding criminal offense in Idaho. …

“In short, given the legal history of Idaho, we cannot simply infer such a right exists absent Roe without breaking new legal ground, which should only occur after the matter is finally submitted on the merits,” the court wrote.

According to Carson McCullough of Courthouse News, “With the cases consolidated and the bans gearing up to effectively outlaw nearly all abortions in the state, advocates looking to continue the fight will have to wait until Sept. 29 when oral arguments on the merits of the bans are set to begin.”

As we reported last week, The Department of Justice also filed its own suit against the state in federal court and has asked for the law to be put on hold. “That lawsuit, the first federal suit filed to try to protect abortion rights, is scheduled to be heard on Aug. 22,” according to Paz .

The Justice Department is suing under the Emergency Medical Treatment and Labor Act (EMTALA), a federal law that requires hospitals which receive Medicare funds to stabilize and care for any patient who needs emergency treatment, regardless of a patient’s ability to pay.  The Justice Department is arguing that the “Idaho law bans abortions in situations where the denial of an abortion would violate the EMTALA,” according to Dan McLaughlin of National Review Online.

According to Emily Cook of Texas Right to Life, “President Ronald Reagan championed and signed EMTALA into law in 1986 to ensure that vulnerable patients, including pregnant mothers in labor, would receive essential care for themselves and their preborn children. With tragic irony, Biden is now trying to use what has been a life-saving law for almost four decades to sanction the killing of unborn children.”

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