IDAHO CAPITAL SUN

BY: KELCIE MOSELEY-MORRIS – JANUARY 5, 2023 

In a 3-2 decision, the Idaho Supreme Court upheld Idaho’s abortion ban and the civil enforcement law allowing providers to be sued for performing abortions in an opinion released Thursday. 

Planned Parenthood and one of its abortion providers, Dr. Caitlin Gustafson, filed three separate challenges with the Idaho Supreme Court, beginning with the civil enforcement bill — also known as the heartbeat bill — in April. Two other challenges were filed in June and July, after the U.S. Supreme Court announced its decision to overturn Roe v. Wade and return the ability to regulate abortion to the states.

Since August, Idaho has had a near-total abortion ban in effect that only permits defenses in court for abortions performed to save a pregnant person’s life or in documented cases of rape and incest. The civil enforcement law allows immediate and extended family members to sue medical providers who perform abortions for no less than $20,000. The law went into effect at the same time as the ban.

Attorneys for Planned Parenthood argued at a hearing in October that under Idaho’s constitution, there is a fundamental right to privacy and to make familial decisions, and said courts throughout history have upheld that belief. Those rights, they contended, are included in Article I of the Idaho Constitution, which specifies certain inalienable rights such as enjoying and defending life and liberty, pursuing happiness and securing safety. 

Justice Robyn Brody authored the opinion, with Chief Justice Richard G. Bevan and Justice Gregory Moeller concurring. Justices John Stegner and Colleen Zahn dissented.

“… We cannot read a fundamental right to abortion into the text of the Idaho Constitution,” the opinion stated. “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.”

Brody wrote that the duty of the judicial branch is to sustain the rule of law, not promote personal policy preferences.

“If we were to jettison that disciplined approach, even in the face of a uniquely emotional and politically divisive issue, the Idaho Constitution would no longer be the voice of the people of Idaho — it would be effectively replaced by the voice of a select few sitting on this court.”

Zahn wrote in her dissent that the inalienable rights of a pregnant woman to life and safety make the right to abortion fundamental under the Idaho Constitution, and Stegner wrote his own separate dissent to say he thinks the constitution provides even broader fundamental rights to Idaho women. 

“I … hold that 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 and safety,” Stegner wrote. “The decision the majority hands down today is, in my view, simply wrong.”