Idaho Supreme Court rejects Planned Parenthood, upholds near-total abortion ban

By Dave Andrusko

In a 3-2 decision, the Idaho Supreme Court Thursday upheld three abortion-related laws, including the “trigger” law which took effect immediately after the Supreme Court overturned Roe v. Wade last June. The outcome was “foreshadowed” last August when the Court “declined to stay the implementation of these laws in another 3-2 decision,” wrote James Dawson for Boise State Public Radio News.

Idaho Republican Party Chairwoman Dorothy Moon applauded the decision. “The Idaho Supreme Court followed the basic canons of constitutional interpretation and found that our constitution does not include an implied right to abort the unborn.” She added, “Our fight is not over, however. We ask all Idahoans to remain vigilant and commitment to defending life.”

She added, “Our fight is not over, however. We ask all Idahoans to remain vigilant and commitment to defending life.”

Planned Parenthood’s attorneys had argued at the October hearing that “under Idaho’s constitution, there is a fundamental right to privacy and to make familial decisions, and said courts throughout history have upheld that belief,” Kelcie Moseley-Morris wrote. “Those rights, they contended, are included in Article I of the Idaho Constitution, which specifies certain inalienable rights such as enjoying and defending life and liberty, pursuing happiness and securing safety.”

However, then, as now, the majority could find no right to abortion in the state Constitution. Justice Robyn Brody, writing for the Court’s majority, said

“… We cannot read a fundamental right to abortion into the text of the Idaho Constitution,” she wrote. “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.”

“That is our duty as the judicial branch: to sustain the rule of law — not to promote our personal policy preferences,” Justice Brody continued. “If we were to jettison that disciplined approach, even in the face of a uniquely emotional and politically divisive policy issue, the Idaho Constitution would no longer be the voice of the people of Idaho — it would be effectively replaced by the voice of a select few sitting on this Court.”

Justice Brody’s concluded that the court “could not find support for the conclusion that a right to abortion was ‘deeply rooted’ in Idaho’s history, noting that nothing in the state’s territorial laws, the record of the 1889 constitutional convention or state medical regulations showed abortion was viewed as a right entitled to heightened protection from the Legislature,” Moseley-Morris wrote.

“To the contrary, the relevant history and traditions of Idaho show abortion was viewed as an immoral act and treated as a crime,” Judge Brody stated. 

She “concluded that all three abortion laws challenged by Planned Parenthood, including the trigger law, the civil enforcement law and a six-week abortion ban that was in effect before the total ban, passed the constitutional test,” according to Moseley-Morris.

The bills were passed in 2020 and 2022, respectively, and signed by Gov. Brad Little. The laws were not enjoined and are in effect.

Background

Writing for the Idaho Capital Sun, Moseley-Morris explained that

Planned Parenthood and one of its abortion providers, Dr. Caitlin Gustafson, filed three separate challenges with the Idaho Supreme Court, beginning with the civil enforcement bill — also known as the heartbeat bill — in April. Two other challenges were filed 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.

Since August, Idaho has had a near-total abortion ban in effect that only permits defenses in court for abortions performed to save a pregnant person’s life or in documented cases of rape and incest.

Justices John Stegner and Colleen Zahn dissented. “I … hold that Idaho women have a fundamental right to obtain an abortion because pregnancy — and whether that pregnancy may be terminated — has a profound effect on pregnant women’s inalienable right to liberty, as well as their rights and safety,” Stegner wrote. “The decision the majority hands down today is, in my view, simply wrong.”