Idaho Supreme Court upholds all abortion laws challenged in Planned Parenthood cases

The Idaho Supreme Court has voted to uphold multiple sections of Idaho code restricting abortion access, according to an opinion published Thursday.

The justices rejected Planned Parenthood’s petitions to block three laws. The first petition challenged an Idaho law that would let certain family members of a fetus sue health care professionals who perform abortions. The second challenged a state law that bans nearly all abortions. The third would make it a felony for medical professionals to perform an abortion after electrical activity is detected.

Attorneys for Planned Parenthood argued that the Idaho Constitution provides an implicit, fundamental right to abortion. Justice Robyn M. Brody, writing for the majority, rejected that argument.

There is no historical evidence to support the conclusion that abortion rights were “deeply rooted” at the time the state constitution was enacted, Brody wrote.

“To the contrary, the relevant history and traditions of Idaho show abortion was viewed as an immoral act and treated as a crime,” she wrote. We “cannot read a fundamental right to abortion into the text of the Idaho Constitution. 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.”

Chief Justice G. Richard Bevan and Justice Gregory W. Moeller concurred with Brody’s opinion.

In a dissenting opinion, Justice Colleen D. Zahn argued that Idaho historically has allowed women to obtain abortions to preserve their life or health. Idaho’s criminal abortion statute provides an explicit exception when the life of a mother is threatened by a pregnancy, but not her health.

Idaho’s constitutional framers, who also wrote some of its early abortion restrictions, would have included an abortion that preserves a woman’s health and safety within the fundamental right to liberty enshrined in the Idaho Constitution, Zahn argued.

“A woman’s pregnancy — and whether that pregnancy is terminated — drastically impacts her rights to both life and safety,” she wrote. “Pregnancy and childbirth are indisputably fraught with danger.”

Idaho’s current anti-abortion statutes restrict a “fundamental right,” but the state did not prove its compelling interest in “protecting potential prenatal life may be achieved without putting the lives and health of Idaho women at significant risk,” Zahn wrote.

Justice John R. Stegner went further in his dissent.

“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 to life and safety,” Stegner wrote.

Which Idaho laws did lawsuits challenge?

Planned Parenthood filed its first lawsuit in March, shortly after the Idaho Legislature passed Senate Bill 1309. The law, which was modeled after a controversial Texas law, allows some family members of a fetus to file a civil lawsuit against a health care provider who performs an abortion. The minimum amount per family member is $20,000.

The law applies when an abortion is performed after what lawmakers called a “fetal heartbeat” — and what medical professionals have said is better described as electrical activity — is detected. That typically occurs around six weeks of pregnancy, before many people even know they’re pregnant.

In June, Planned Parenthood filed a second lawsuit after the U.S. Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, sending decisions on abortion rights back to the state level. The decision triggered an Idaho law enacting a near-total ban on abortions, except in cases where the procedure is necessary to save the life of the mother, or in cases of rape or incest that have been reported to law enforcement.

In July, the U.S. Court of Appeals for the 11th Circuit upheld a law in Georgia banning abortions after a “fetal heartbeat” is detected. That triggered a similar law in Idaho, prompting Planned Parenthood’s third lawsuit. Idaho’s law makes it a felony for medical professionals to perform an abortion after electrical activity is detected. The more restrictive abortion ban triggered in June supersedes the criminal penalties in the heartbeat law.

Planned Parenthood, anti-abortion rights activists react

Planned Parenthood said in a statement that it would continue to work toward abortion access.

“Idaho’s abortion bans have been in effect since August, forcing Idahoans who need abortion care to leave the state in order to access basic health care, a reality that is out of reach for many,” the statement read. “The consequences of this decision will fall largely on people who already face the greatest barriers to health care due to this country’s legacy of racism and discrimination, including Black, Latino, and Indigenous communities, people with low incomes, LGBTQ+ people, immigrants, and people living in rural areas.”

Rebecca Gibron, CEO of Planned Parenthood Great Northwest, Hawai‘i, Indiana, Kentucky, called Thursday “a dark day” for Idaho.

“We will keep fighting with everything we’ve got to restore Idahoans’ right to control our bodies and our lives,” Gibron said. “No matter what happens, Planned Parenthood is here for you. Our doors are open in Idaho, and our teams are ready to help you get the care you need, even if that means traveling out of state.”

Planned Parenthood noted that the Supreme Court decision came the same week that the Food and Drug Administration approved abortion pills for sale at retail pharmacies.

“While abortion is banned in Idaho and pharmacies in Idaho are unlikely to carry the medication, this change is an important step for Idahoans, because it will make it easier to access out-of-state abortion care by traveling to neighboring states like Washington or Oregon and filling prescriptions at pharmacies,” Planned Parenthood said in its statement.

The Idaho Family Policy Center, which helped craft the civil enforcement law that touched off the first lawsuit, issued a statement shortly after the Idaho Supreme Court decision was made public.

“As we have been saying for months, our Idaho Heartbeat law is constitutionally, scientifically, and morally sound,” said Blaine Conzatti, director of the Idaho Family Policy Center. “ ... Today is a great day for precious preborn babies in Idaho!”

House Assistant Minority Leader Lauren Necochea, D-Boise, who chairs the Idaho Democratic Party, said the government “should not question” the “range of deeply personal reasons” people seek abortions.

“Patients, not judges or politicians, should make their own personal decisions when it comes to medical care,” Necochea said in a news release. “This decision has made it even clearer that Idahoans cannot rely on the courts to protect their reproductive freedoms.”