The Idaho Supreme Court has little time to decide how an abortion rights initiative will appear to voters on their ballot this fall.
The state’s highest court heard oral arguments Wednesday afternoon in the expedited case as a deadline looms to print absentee ballots for overseas and military voters.
At issue is how Secretary of State Phil McGrane and Attorney General Raúl Labrador wrote the 'yes' and 'no' statements voters will mark on their ballots, which Idaho law requires to be clear and concise.
These are the statements submitted to county clerks by the Idaho Secretary of State:
- “A yes vote would create reproductive rights, including a right to abortion before a fetus’s ability to survive and after a fetus’s ability to survive in cases of a medical emergency and provide liability protections for healthcare providers.”
- “A no vote would make no changes to Idaho’s current law, which protects the life of the unborn while allowing abortion in reported cases of rape or incest, or when necessary to protect the life of the mother.”
“What we want are yes/no statements that do not confuse the voter and do not characterize or sit in contrast with the ballot titles that already exist,” said Jennifer Aiko, an attorney for Idahoans United for Women and Families, which brought the lawsuit.
The group proposed that a ‘yes’ vote would adopt the changes outlined in the initiative, while a ‘no’ vote would keep current law intact.
“That doesn’t tell voters anything. It tells them virtually nothing,” said Yvonne Dunbar, a deputy attorney general representing McGrane.
In Idahoans United’s briefing, it points out that the ‘no’ statement excludes the fact that current law makes it a felony for a doctor to provide an abortion outside limited circumstances.
Several justices latched onto that argument, including Gregory Moeller.
“I’m just not sure how with a straight face you could conclude in a reasonable definition of what’s important that the criminal charges are not an important, if not an essential, aspect of the change in law that would take place,” Moeller said.
Dunbar said the state needed to balance accuracy with brevity in order to meet the law’s requirements of being clear and concise.
“It is impossible in a short, clear and concise statement to explain every single one of Idaho’s abortion laws and how a complicated … proposition like Proposition 1 would affect those statutes,” said James Craig, the head of the AG's Civil Litigation and Constitutional Defense dvision.
This is the second time Idahoans United has brought a lawsuit against Labrador and McGrane over legal language regarding Proposition 1.
In the first case, which settled in June 2025, justices found the two state officials didn’t fully describe the initiative’s effects.
In that opinion, the court unanimously found four main changes to Idaho law:
- A statutory right to an abortion before fetal viability
- A statutory right to an abortion after fetal viability to protect the health of the mother
- Statutory protections for healthcare providers performing abortions
- A statutory right for individuals to make their own reproductive healthcare decisions
“How did you not include at least the four distinctive characteristics that the court identified…” in that opinion, asked Justice Colleen Zahn.
Craig said they are outlined in the 'yes' statement, though not in the 'no' statement.
“You have to look at them together,” he said.
“If someone reads ‘yes’ and they think, ‘That sounds good to me,’ they’ll never [read the ‘no’ statement],” and vice versa, Moeller said.
“They are right next to each other on the ballot,” Craig replied.
“But these aren’t jury instructions where we instruct the jury to read through all the instructions before they make their decision,” Moeller said, noting a voter could miss further information.
Craig said, “They might,” but that responsibility lies with the individual.
If a voter needed to learn more about how the initiative would change state law, Dunbar said they would need to do that research outside the voting booth.
A decision in the case is expected soon, as ballots must be printed for military and overseas voters by Sept. 14.
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