Judicial

Idaho Supreme Court hears challenge to the state’s very protective abortion laws

By Dave Andrusko

The Idaho Supreme Court will hear oral arguments today for and against three abortion-related laws, including the trigger law which took effect immediately after the Supreme Court overturned Roe v. Wade. The trigger law, which prohibits virtually all abortion, will have been in effect exactly 100 days. 

“A Texas-style civil enforcement bill allowing immediate and extended family members to sue medical providers who perform abortions went into effect at the same time as the total ban,” according to Kelcie Moseley-Morris of the Idaho Capital Sun.

“Now opponents of the two laws, along with a third six-week abortion ban that was superseded by the trigger ban, will have one hour to convince Idaho Supreme Court judges that the laws should be struck down entirely.”

 “Planned Parenthood and one of its abortion providers, Dr. Caitlin Gustafson, filed three separate challenges with the court, beginning with the civil enforcement bill — also known as the heartbeat bill — in April,” Moseley-Morris explained. “The organization filed the other two challenges in June and July, after the U.S. Supreme Court announced its decision to overturn Roe v. Wade and return the ability to regulate abortion to the states.”

On August 3rd, the Idaho Supreme Court held a hearing “to address procedural questions around the trigger ban and civil enforcement law, to determine whether the trigger law’s implementation should be paused, whether a pause on the civil enforcement law should be lifted, and whether the two lawsuits should be consolidated and handed to a lower court for additional development,” Moseley-Morris wrote.

“The court decided not to place a stay on the trigger law, allowing it to go into effect, and lifted the pause on the civil enforcement law. The Justices decide but did consolidate the cases into one, including the lawsuit against the six-week ban.”

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.

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.”

The hearing was put off a week due to illness affecting a member of the Idaho Supreme Court.

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