Idaho Supreme Court won't block strict abortion bans

By REBECCA BOONE

Associated Press

BOISE — Idaho's strict abortion bans will be allowed to take effect while legal challenges over the laws play out in court, the Idaho Supreme Court ruled Friday.

The ruling means potential relatives of an embryo or fetus can now sue abortion providers over procedures done after six weeks of gestation — before many people know they are pregnant. Another stricter ban criminalizing all abortions takes effect later this month.

A doctor and a regional Planned Parenthood affiliate sued the state earlier this year over three anti-abortion laws, most designed to take effect should the U.S. Supreme Court overturn Roe v. Wade, which it did in June.

In a split ruling, the majority of justices on the Idaho Supreme Court said the laws could take effect but sped up the timeline for the lawsuits to be decided. Two justices agreed with expediting the cases, but said they felt the laws shouldn't be enforced until the legal wrangling is complete.

“Tonight, the people of Idaho saw their bodily autonomy and reproductive freedom taken away,” Planned Parenthood Federation of America president Alexis McGill Johnson said in a news release. “The court's decision today is horrific and cruel. But this isn't the end of the fight, and it isn't our last day in court. No one should see their lives used as pawns by their elected officials or judicial system.”

The U.S. Department of Justice is also suing Idaho in federal court over a near-total abortion ban, and has asked that the law be put on hold. The federal judge has not yet ruled in that case.

Under the Idaho Supreme Court ruling, a near-total criminalizing of all abortions — but allowing doctors to defend themselves at trial by claiming the abortion was done to save the pregnant person's life — will take effect Aug. 25.

Another law that takes effect immediately allows potential relatives of an embryo or fetus to sue abortion providers for up to $20,000 within four years of an abortion. Rapists cannot sue under the law, but a rapists' family members would be able to sue.

Planned Parenthood has also sued over a third strict ban criminalizing abortions done after six weeks of gestation except in cases where it was needed to save a pregnant person’s life or done because of rape or incest. That law was written to take effect Aug. 19.

Dr. Caitlin Gustafson and Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky filed three lawsuits over each of the laws. The Idaho Supreme Court consolidated those cases into one as part of Friday's ruling.

Planned Parenthood and the doctor failed to show that allowing enforcement of the laws would cause “irreparable harm,” the Idaho Supreme Court found. The high court said the plaintiffs also didn't have enough evidence that they had a “clear right” to a remedy, or that they were likely to win on the merits of the case.

“What Petitioners are asking this court to ultimately do is to declare a right to abortion under the Idaho Constitution when — on its face — there is none,” Justice Robin Brody wrote for the majority, joined by Chief Justice Richard Bevan and Justice Gregory Moeller.

The complexity of the arguments are likely to break new legal ground in the state, the majority found. The justices said that meant the issues shouldn't be decided until the case plays out in full — a process that can take months or longer.

“In short, given the legal history of Idaho, we cannot simply infer such a right exists absent Roe without breaking new legal ground, which should only occur after the matter is finally submitted on the merits,” the court wrote.

Justice John Stegner, joined by Justice Colleen Zahn, wrote in a partial dissent that even casual observers can tell that the U.S. Supreme Court's ruling has caused "significant upheaval' in society.

“I begin by noting that never in our nation's history has a fundamental right once granted to her citizens been revoked,” Stegner wrote. “For almost half a century, the people of Idaho who performed or obtained abortions were protected by the recognized federal fundamental right of the woman involved in the procedure to exercise her right to bodily autonomy and health to terminate the pregnancy.”

Stegner took issue with the majority's decision to allow the laws to go into effect, noting that they relied in part on legal interpretations from other states and federal courts.

“Simply put, this case involves the application of Idaho law to a uniquely Idaho question,” he said, and allowing the laws to take effect while that question is decided puts women at risk of being denied a fundamental right.

“The State and the Legislature's only argument that irreparable harm will not result is that the Idaho Constitution does not protect the right to an abortion,” Stegner wrote. “This argument fails because it is premised on a decision we have not yet made.”

During oral arguments in the case last week, an attorney for Planned Parenthood and Gustafson told the high court that the abortion bans’ exceptions for saving a patient’s life are so vague that they are impossible to follow.

“That language gives no indication of how imminent, or substantial, the risk of death must be in order for a provider to feel confident” performing the abortion, said Alan Schoenfeld. “Suppose a patient with pulmonary hypertension has a 30 to 50% risk of dying … is that enough?”

But attorneys representing the state and Legislature told the court that abortion has historically been outlawed in Idaho since statehood, and argued that stopping the laws from taking effect would cause harm to “unborn children.”

Blaine Conzatti, president of the anti-abortion group Idaho Family Policy Center, lauded the decision.

“This is the day that the pro-life movement has worked towards for decades,” Conzatti wrote in a news release, calling it a “great day for preborn babies.”

Rebecca Gibron, the CEO of the regional Planned Parenthood affiliate, said the organization would not stop its efforts.

“The Idaho state legislature has made it abundantly clear that this is the future they want for their constituents, and today, the court allowed their vision to become a reality. But his fight is not over,” Gibron said in a news release. “These cases and our fight to ensure that every Idahoan has access to legal, safe abortion care will continue.”