Shortly after the U.S. Supreme Court overturned Roe v. Wade and federal abortion rights with the Dobbs decision in 2022, three separate pro-life laws went into effect in Idaho that were then immediately challenged as unconstitutional by a local abortion provider and Planned Parenthood Great Northwest.
The three combined lawsuits eventually made it to the Idaho Supreme Court, but that court ruled 3-2 on January 5 that none of the three challenged laws violated the state’s constitution, as that governing document did not guarantee state residents a right to abortion, Breitbart reported.
At issue is the state’s Total Abortion Ban, which bans all abortions but allows providers to legally defend themselves if the procedure was necessary to save the life of the mother or there was proof of incest or rape; the 6-Week Ban that outlawed the procedure once a fetal heartbeat was detected; and the Civil Liability Law that allows prospective family members of an unborn baby to sue an abortion provider for damages.
There is no right to an abortion in Idaho
In the majority opinion, Justice Robyn Brody wrote, “These cases primarily concern whether the Idaho Constitution protects abortion from the legislature’s broad power to enact laws concerning the public’s health, welfare, and safety.”
“The Idaho Constitution does not contain an explicit right to abortion,” she stated, nor does it contain an implicit right as one of many unspecified inalienable or “fundamental” rights for Idahoans, particularly given a review of the state’s history in terms of its constitution and numerous anti-abortion laws since both before and after Idaho became a state in 1890.
“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.”
“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,” she continued.
The justice ultimately determined, “We conclude that the Total Abortion Ban, 6-Week Ban, and Civil Liability Law each pass the familiar test for determining the constitutionality of most legislation: ‘rational-basis’ review. Under that form of review, each of these laws is constitutional because it is 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.”
“Importantly, the questions of whether a law passes constitutional muster — and whether a law is good policy — are distinct,” Brody added. “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.”
Addressing points raised in dissent
At another point in the opinion, Justice Brody addressed the separate arguments made by the two dissenting jurists, Justices Colleen Zahn and John Stegner.
Zahn had said that Idaho’s constitution should “change with the times” and speculated about even more restrictive anti-abortion laws in the future, while Stegner had asserted that Brody was wrong and the state constitution did contain an implicit right to obtain an abortion.
“Both dissents also raise the specter that if the Court were to interpret our Constitution as containing no fundamental right to abortion, a future legislature may eliminate all affirmative defenses and exceptions,” she wrote. “What the legislature might do in the future does not drive our decisions. We issue opinions based on actual cases and controversies that come before us today — not the hypothetical fears of tomorrow.”
Both sides react predictably
The Associated Press reported that the pro-abortion challengers against Idaho’s laws were understandably upset by the state Supreme Court’s ruling, as evidenced by the remarks of Planned Parenthood Great Northwest CEO Rebecca Gibron, who said in a statement, “This is a dark day for the state of Idaho. But our fight is far from over.”
However, the pro-life side of the debate was just as predictably pleased by the ruling, as Blaine Conzatti of the Idaho Family Policy Center said in a statement, “Today is a great day for precious preborn babies in Idaho.”