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Abortion battles now likely to shift to state supreme courts across the Mountain West

The Idaho Supreme Court building
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The U.S. Supreme Court’s decision to overturn Roe v. Wade hands abortion decisions to states. That means state supreme courts will likely have to determine what abortion rights people may have under their own state constitutions.

In the Mountain West, there are already several lawsuits challenging state abortion laws. Planned Parenthood organizations filed one in Idaho and another in Utah. The Utah filing has temporarily stalled that state’s abortion ban from going into effect. Others are considering lawsuits in Wyoming, too.

Shaakirrah Sanders, a law professor at the University of Idaho, said abortion rights organizations saw the writing on the wall in May.

“I am sure that once many saw the draft [U.S. Supreme Court] opinion that was leaked, they were in their individual ‘war rooms’ thinking of what legal challenges they can bring,” she said.

Sanders said legal fights over abortion had previously played out mostly in federal courts. Now, state courts will likely have to play catch up on what abortion rights may or may not be conferred by their own statutes.

“[It’s] very unclear where state supreme courts are going to go now that the power is in their hands,” she said.

She said specific state constitutions and statutes could present challenges to preserving new anti-abortion laws. For example, she points to Idaho’s “faith-healing” statute, which protects people’s rights to not obtain medical care for their children or fetus.

“Will Idaho be prosecuting those who seek an abortion, and leaving those alone who don’t seek medical care for their fetus, even if there is a serious medical issue that implicates the life of that fetus?” she asked.

A shift towards state abortion decisions could also bring more scrutiny to state supreme courts and the justices, themselves. Some, like those in Utah, are appointed. Others, like those in Idaho, are elected.

“If they vote to invalidate an abortion statue in their particular state, you can be sure that that issue will be very salient in coming elections,” said Stefanie Lindquist, a law and political science professor at Arizona State University.

Sanders and Lindquist said the U.S. Supreme Court’s ruling certainly isn’t the end for discussions over what is constitutional, both at the state and federal level.

“What if a state decides that it wants to outlaw the use of an abortion pill, which can be received through the mail? How is that going to be enforced? Are people’s mail going to be searched?” Lindquist asked. “It can become very intrusive.”

Alternately, some other state leaders say they’ll help shield women from prosecution over abortions. That includes the governors of New Mexico and Washington, who say their law enforcement agencies won’t cooperate with other states’ abortion investigations.

This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, KUNR in Nevada, the O'Connor Center for the Rocky Mountain West in Montana, KUNC in Colorado, KUNM in New Mexico, with support from affiliate stations across the region. Funding for the Mountain West News Bureau is provided in part by the Corporation for Public Broadcasting.

I'm the regional reporter with the Mountain West News Bureau at Boise State Public Radio.