Idaho Supreme Court Upholds Abortion Bans

Idaho’s Supreme Court upheld the state’s prohibition on abortion in a ruling Thursday night that said the State Constitution does not include a right to the procedure.

The decision means the state’s three abortion bans — including one that outlaws the procedure from conception — can remain in effect.

The ruling came just hours after South Carolina’s State Supreme Court went the other direction and overturned an abortion ban there, saying the state’s constitutional right to privacy includes the right to abortion.

Around a dozen states have abortion bans, many of which are being challenged in courts. Those challenges are the result ofa U.S. Supreme Court decision last year to remove the constitutional right to abortion that had been guaranteed for nearly 50 years by Roe v. Wade. That decision handed the matter to the states to decide.

The lawsuits are part of a wider strategy by those who support abortion rights to establish a right to abortion under each state’s constitution, in lieu of the federal protections previously offered by Roe.

State supreme court decisions are important because they effectively represent final resolutions about whether abortion is legal or not in individual states. Federal appeals, the typical next step, may mean the question winds up back at the U.S. Supreme Court, which has already weighed in on the matter. Other paths to change a state supreme court ruling are narrow: a state could try to amend its own constitution through its legislature or in ballot initiatives.

In the 3-2 ruling, the Idaho Supreme Court delivered a sweeping victory for abortion opponents by backing all three state laws restricting the procedure, marking the end of a monthslong court battle.

Lawyers for Planned Parenthood, a leading provider of abortions in the country, argued that the procedure is implicit in Idaho’s Constitution, which protects the right to privacy and due process.

The justices rejected that argument and said that Planned Parenthood lawyers failed to show abortion was “deeply rooted” in the state’s history and traditions. “To the contrary, the relevant history and traditions of Idaho show abortion was viewed as an immoral act and treated as a crime,” Justice Robyn Brody wrote in the majority opinion.

Idaho has three separate bans: one that allows family members of the aborted fetus to sue abortion providers in civil court, another that prohibits abortions after six weeks of pregnancy, and a third that bans all abortions from conception, with exceptions for rape, incest or a medical threat to the life of the mother.

The strictest of the three laws has been partially in effect since late August. A lawsuit brought by the U.S. Justice Department has blocked a part of that law that allows doctors and abortion providers to be sued and convicted in criminal court. That case is still pending.

Under that law, providers who are convicted face up to five years in prison, and could have their medical license suspended for at least six months. It allows doctors to cite rape, incest or an effort to save the life of a pregnant woman as a defense in a trial. But the woman must provide a police report in cases of rape or incest.

Right to Life of Idaho, which believes abortion is murder, praised the court’s decision. The justices “upheld pro-life laws that were passed by the representatives of the people.”

Rebecca Gibron, chief executive of Planned Parenthood Great Northwest, Hawaii, Indiana, Kentucky, said it was “a dark day for the state of Idaho,” but added that “our fight is far from over.”

Mary Ziegler, a law professor at University of California, Davis, said the rulings in Idaho and South Carolina underscore the importance of state supreme courts, particularly in states like Idaho that hold judicial elections.

Idaho’s five justices are elected in nonpartisan elections, or, in the case of a midterm vacancy, appointed by the governor. Four of the five current justices in Idaho, a deeply Republican state and voted to re-elect Donald Trump for president in 2020, were appointed by a Republican governor.

For abortion rights advocates, state courts can offer a more favorable legal stage, because any federal challenge could eventually land in front of the U.S. Supreme Court, the same bench that overturned Roe.

The disparate rulings in Idaho and South Carolina offers some insight into the political and legal variables that will determine the future of abortion access in conservative states. In both states, abortion rights advocates argued that the right to have an abortion is implied by the state constitution’s privacy protections, applying the argument set forth in Roe v. Wade at the state level.

This pursuit of a “mini Roe” sometimes succeeds because many state constitutions, including South Carolina’s, have more robust privacy protections than the federal Constitution.

The decision to uphold the near-total ban on abortion is a setback for the Biden administration, which has been trying to block abortion bans and ensure access to abortion with limited success.

The U.S. Justice Department filed its own lawsuit against Idaho, challenging the near-total abortion ban in August. A federal judge temporarily blocked part of Idaho’s abortion ban after the Justice Department argued that the measure violated a federal law known as the Emergency Medical Treatment and Labor Act, which requires medical professionals in hospitals that accept Medicare funding to take whatever steps are necessary to ensure the physical well-being of patients, including pregnant women.

Because the Justice Department’s challenge is based on a federal law that is unrelated to the Idaho Constitution, the lower court’s injunction remains in place, meaning doctors still cannot be punished for acting to protect the health of endangered mothers.

But Ms. Ziegler and other legal experts said that the although the Justice Department’s suit contains a different legal question than the one addressed in Thursday’s ruling, the Idaho Supreme Court’s decision will most likely have a chilling effect on doctors who perform abortions, even in emergency medical situations that are supposed to be covered by the federal court’s injunction.

Now that the Idaho Supreme Court declined to enshrine the right to abortion in the State Constitution, a doctor who provides an abortion is entirely betting on the success of the Justice Department’s lawsuit, she said.

A federal suit could ultimately “land in front of the same court that overturned Roe,” Ms. Ziegler said.

In his dissent, Justice John R. Stegner wrote that the severe consequences of misinterpreting Idaho’s abortion law will “ensure that those doctors must delay lifesaving medical care to seek legal advice prior to performing an abortion.”

“Women will leave this great state as a result of this decision, as will the people who love them and wish to see them healthy and alive,” he wrote. “As much as that saddens me, I cannot blame them.”