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Idaho Supreme Court upholds abortion ban, civil enforcement law

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Darin Oswald/doswald@idahostatesman.com
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Idaho Statesman
The Idaho Supreme Court hears oral arguments, Thursday, Oct. 6, 2022, regarding abortion related laws passed by the Idaho Legislature.

Justice: Job of judicial branch is to sustain rule of law, not promote personal policy preferences

In a 3-2 decision, the Idaho Supreme Court upheld Idaho’s abortion ban and the civil enforcement law allowing providers to be sued for performing abortions in an opinion released Thursday.

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. The civil enforcement law allows immediate and extended family members to sue medical providers who perform abortions for no less than $20,000. The law went into effect at the same time as the ban.

Attorneys for Planned Parenthood argued at a hearing in October 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. 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.

Justice Robyn Brody authored the opinion, with Chief Justice Richard G. Bevan and Justice Gregory Moeller concurring. Justices John Stegner and Colleen Zahn dissented.

“… We cannot read a fundamental right to abortion into the text of the Idaho Constitution,” the opinion stated. “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 the duty of the judicial branch is to sustain the rule of law, not promote personal policy preferences.

“If we were to jettison that disciplined approach, even in the face of a uniquely emotional and politically divisive 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.”

Zahn wrote in her dissent that the inalienable rights of a pregnant woman to life and safety make the right to abortion fundamental under the Idaho Constitution, and Stegner wrote his own separate dissent to say he thinks the constitution provides even broader fundamental rights to Idaho women.

“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.”

Activist organizations react to Idaho ruling

Blaine Conzatti, president of the Idaho Family Policy Center and a key proponent of the trigger ban and civil enforcement law, told the Idaho Capital Sun on Thursday that the decision did not come as a surprise.

“We’ve been saying for months that the heartbeat law was constitutionally, scientifically and morally sound,” Conzatti said. “It’s entirely aligned with our constitutional tradition and recognizes the importance of valuing pre-born life that earlier generations of Idahoans and Americans sought to do as well.”

Despite criticisms of vagueness in the bill’s wording that has prompted concern from medical providers and activists, Conzatti said he doesn’t expect any substantive changes to the laws to come from the upcoming legislative session, which begins Monday.

“Both the heartbeat law and the trigger law do not interfere with miscarriage care or ectopic pregnancy care, and both of these laws allow women to receive a life-saving abortion if necessary,” Conzatti said.

Rebecca Gibron, CEO of Planned Parenthood Great Northwest, said in a statement issued Thursday that the decision will largely affect people who already face the greatest barriers to health care, including people of color and members of the LGBTQ community.

“This is a dark day for the state of Idaho, but our fight is far from over,” Gibron said in the release. “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.”

If we were to jettison that disciplined approach, even in the face of a uniquely emotional and politically divisive 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 Robyn Brody, Jan. 5 opinion

The release also stated that the decision comes the same week the U.S. Food and Drug Administration approved retail and mail-order pharmacies to dispense mifepristone, the first of two pills that can be used to terminate a pregnancy. The change should make it easier for Idahoans to access out-of-state abortion care, according to the release.

Idaho Republican Party Chairwoman Dorothy Moon issued a statement Thursday saying the party applauds 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,” Moon said. “Our fight is not over, however. We ask all Idahoans to remain vigilant and commitment to defending life.”

Speaking for the Idaho Democratic Party in an emailed statement, Chairwoman Lauren Necochea said every pregnancy is unique and people seek abortion care for a range of deeply personal reasons that the government should not question.

“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,” Necochea said. “Idaho’s extreme abortion ban, passed by the Republican-controlled Legislature and signed by Gov. (Brad) Little, endangers the lives of pregnant Idahoans and undermines the duty hospitals have to treat and stabilize sick patients. … Idaho Democrats will continue to fight for the reproductive rights and freedoms of all Idahoans for as long as it takes.”

Voters can still have a say in what comes next, opinion says

The opinion states that the majority justices 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.

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

The opinion 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.

“(The laws are) rationally related to the government’s legitimate interest in protecting prenatal fetal life at all stages of development, and in protecting the health and safety of the mother,” the opinion said. “In the challenges petitioners bring today, we can only judge these laws — as demanded by the constitutional principle of separation of powers — based on their constitutionality, not on whether they are wise policy.”

Justice Brody also wrote that nothing about the decision prevents the voters of Idaho from “answering the deeply moral and political question of abortion at the polls.” If the people of Idaho are dissatisfied with the new laws, she wrote, they can elect new legislators.

“Additionally, the Idaho Constitution is not immutable. … We emphasize that all we are deciding today is that the Idaho Constitution, as it currently stands, does not include a fundamental right to abortion.”

The Idaho Capital Sun is a nonprofit news organization delivering accountability reporting on state government, politics and policy in the Gem state.