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Idaho Supreme Court upholds near-total abortion ban

Idaho Supreme Court abortion lawsuits
Sarah A. Miller
Idaho Statesman
Justice Gregory W. Moeller asks for clarification from Alan Schoenfeld, a New York City lawyer who is part of the legal team representing Planned Parenthood, as the lawyer makes a case for procedures in two lawsuits pertaining to Idaho abortion laws: the state trigger law and the law allowing people to sue abortion providers at the Idaho Supreme Court in Boise on Wednesday, Aug. 3, 2022.

Idaho’s near-total abortion ban, along with two others, will stand as the state’s supreme court rejected multiple challenges from Planned Parenthood and a local abortion provider.

The only exceptions when a physician is allowed to perform an abortion under the law are in cases of rape, incest or when a pregnancy threatens the life of the mother.

Planned Parenthood claimed the laws are unconstitutionally vague and discriminate based on a person’s sex.

The abortion rights organization also argued there’s an inherent right for a woman to get an abortion in the Idaho Constitution, though the court dismissed that due to the U.S. Supreme Court’s choice to jettison its precedent in Roe v. Wade last summer.

All of their arguments were rejected in the split 3-2 decision issued Thursday.

“Petitioners have put forth no evidence, nor can we find any, that the framers at the [constitutional convention] discussed any of these topics in such a way that we could conclude they intended to implicitly protect abortion as a fundamental right…” Justice Robyn Brody wrote for the majority, noting the state's longstanding tradition of restricting the practice.

Justices must interpret the state’s constitution based on the intention of the framers in 1898, she wrote, “without regard to the social, economic, or moral preferences of the litigants before us.”

“We will not take this Court down an interpretive path that turns on our own sincerely held personal policy preferences that may inevitably yield to a similarly well-intended self-correction in the future.”

Brody’s 106-page decision outlined examples from Idaho’s constitutional convention, territorial laws, prosecutions of criminal abortions and other historical examples underpinning her opinion.

The state’s newest justice, Colleen Zahn, along with Justice John Stegner dissented, saying a pregnant woman does have a fundamental right to an abortion.

“While history and tradition are important and often controlling considerations, they should not always be the sole consideration,” Zahn wrote.

While legislators drafted the Idaho Territory’s initial laws, they referred to an abortion exception to “save” the life of a pregnant mother.

Shortly before becoming a state, Zahn wrote that language changed to “preserve” the life of the mother – a word she says more broadly encompasses a woman’s health as well.

That interpretation, she wrote, is circumvented by Idaho’s near-total abortion ban, which only protects the “life” of the mother.

Zahn wrote that has severe implications for women who must take medication that can harm a fetus in order to treat severe mental health problems.

“…[the ban] forces her to either take those medications and deal with the impacts the medication will have on the unborn or stop taking potentially life-saving medications and hope for the best.”

Zahn’s dissent would allow for the state to regulate abortion in some circumstances, while Stegner’s interpretation goes even broader.

He began his opinion by saying the majority opinion is “simply wrong.”

“This Court’s solemn duty is to protect the people and their rights from encroachment by the government,” Stegner wrote in his dissent. “That duty has gone unfulfilled today, and it is the people of Idaho who will suffer for it.”

The state constitution explicitly protects Idahoans’ rights to life, liberty, safety and happiness, which he wrote are all rooted in an individual’s “personal autonomy.”

“If the personal autonomy to decide one of life’s biggest decisions—whether to bear a child—is not protected by our inalienable rights to life, liberty, safety, and the pursuit of happiness, what is?”

Anti-abortion activists praised Thursday’s decision.

“The pro-life movement has worked toward this day for decades with sweat, tears, and sacrifice,” said Blaine Conzatti, president of the Idaho Family Policy Center, which helped draft the laws.

Meanwhile, Planned Parenthood promised women in Idaho seeking an abortion they would help them obtain one in a state where the procedure is legal.

A federal court challenge to the state's near-total abortion ban remains ongoing.

Follow James Dawson on Twitter @RadioDawson for more local news.

Copyright 2023 Boise State Public Radio

I cover politics and a bit of everything else for Boise State Public Radio. Outside of public meetings, you can find me fly fishing, making cool things out of leather or watching the Seattle Mariners' latest rebuilding season.

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