Idaho Supreme Court Removes Stay from Two Idaho Abortion Laws, Allowing for Enforcement.
Idaho has become ground zero for abortion politics in the post-Dobbs world. In 2020, Idaho passed a restrictive trigger law that would go into effect thirty days after Roe v. Wade was overruled. The trigger law made all abortions illegal unless a physician can establish that the pregnancy was the result of a verified case of incest or rape or that the abortion was “necessary to prevent the death of the pregnant woman.” In 2022, Idaho also passed the Heartbeat Law, allowing family members to file civil suits against providers who perform an abortion.
The Dobbs v. Jackson Women's Health Organization decision, issued in June, once again made abortion an issue states could make laws upon.
After Dobbs, three forces have sought to undermine or overturn Idaho’s new pro-life regime.
At the behest of Planned Parenthood, the Idaho Supreme Court issued a stay on Idaho’s Heartbeat Law, holding that it may violate the Idaho Constitution.
U.S. Attorney General Merrick Garland is seeking a federal injunction against Idaho’s criminal abortion statute. Idaho’s law, according to Garland, allows only the exception for the life of the mother, but not for the health of the mother. This violates the Emergency Medical Treatment and Labor Act, which requires that doctors treat patients whose health is in “serious jeopardy.” The issue is pending.
Boise has directed police and prosecutor resources away from enforcing the state laws against “criminal abortion” in Boise.
On Friday, the Idaho Supreme Court, in a closely-divided 3-2 decision, removed the stay against Idaho’s Heartbeat Law and against Idaho’s abortion ban. As a result, the Heartbeat Law is now the law in the state and Idaho’s “trigger law” will go into effect later in August.
A stay is a legal action that stops an action of a party. In this case, the Court had stayed the state of Idaho from enforcing its abortion laws or private parties from suing under the Heartbeat Law. The laws of Idaho will now be enforced while legal proceedings between the parties continues. A full hearing on the merits of both laws is scheduled for September 29th. Each law could still be thrown out as inconsistent with the Idaho Constitution as a result of that later hearing.
Justice Robyn Brody wrote the Court’s opinion, which Chief Justice Richard Bevans and Justice Gregory Moeller joined. Two justices—Justice John Stegner joined by Justice Colleen Zahn—dissented, thinking that the Court should not grant the stay in either case.
Much of controversy centered on a technical discussion of whether the conditions for issuing stays have been met in this case. The most interesting part of the opinions, however, concerns reading the tea leaves about what the opinions reveal for the later, much more crucial hearing.
Will the justices think that Idaho’s Constitution allows for the right to abortion?
The three justices in the majority held that Planned Parenthood had not “demonstrated a substantial likelihood of success on the merits.” What Planned Parenthood was, in the words of the Court opinion, “asking this Court to ultimately do is to declare a right to abortion under the Idaho Constitution when—on its face—there is none.”
In fact, Idaho has a long history of making abortion a criminal offence, including passing laws in 1887, 1932, and 1948. Even before Idaho was a state its territorial laws criminalized abortion. Planned Parenthood was asking that “such a right should nevertheless be read into” the Idaho Constitution (emphasis in the original). Since Planned Parenthood does not have “substantial likelihood of success” in finding a right to abortion, Idaho’s ban looks like it will survive and most of the assumptions of the Heartbeat Law are also sound and secure.
Dissenters, however, seem open to finding a right to abortion in Idaho’s Constitution. Their opinion begins bemoaning how the Dobbs decision marks the first time “in our nation’s history” that “a fundamental right once granted to her citizens [has] been revoked.” They counsel a go-slow approach to this supposed revolution in removing the right to abortion, since so many people have planned their lives around the right to abortion. They seem to think that because many have acted and thought there is a right to abortion that there must be a right to abortion.
All the threats to Idaho’s new abortion regime are still alive but the threat coming from the Planned Parenthood lawsuit is not alive and well. Three members of the Court have indicated that they are not overly sympathetic to Planned Parenthood’s claims. Two are pretty silent on the merits, but are at least somewhat sympathetic to Planned Parenthood’s claims.
Why only three, after thirty years of Republican rule and a solidly pro-life majority in the state legislature? That is a story Action Idaho will treat on a different day.