BOISE, Idaho — This article originally appeared in the Idaho Press.
The Idaho Legislature has decided that the life of an unborn fetus is more important than the health of the pregnant woman carrying that fetus, lawyers for the state told the Idaho Supreme Court on Thursday.
“The state has exercised its powers to protect the lives of pre-born children,” Deputy Attorney General Megan Larrondo told the justices. “This is a battle that is properly waged at the ballot box. It is not the place of this court to adjudicate policy disputes.”
Under questioning from the justices, she said, “The woman’s health is not mentioned in the statute.”
Attorneys for Planned Parenthood said the Legislature went too far when it passed three anti-abortion laws, including the near-total ban that took effect Aug. 25. That’s a “trigger law” passed in 2020 that was triggered to take effect once the U.S. Supreme Court had overturned Roe v. Wade. Attorney Alan Schoenfeld said it and two other Idaho anti-abortion laws violate liberty and privacy rights guaranteed to Idaho women by the state Constitution.
“This court has long recognized and the framers recognized that there’s a right to liberty, to secure happiness, to secure safety under the Constitution,” Schoenfeld told the justices. “The question is whether the right to decide whether to terminate a pregnancy is so fundamentally connected to all of the rights that you’ve identified, and whether it is necessary to exercise the other rights protected under the Idaho Constitution,” and goes to “the fundamental ability of women to participate in the life of this state, or whether they be stripped of their civil, political and personal identity by the state Legislature. That’s the question before this court.”
The “trigger” law makes all abortions in Idaho a felony, at any stage of pregnancy. Doctors prosecuted under the law would be granted an “affirmative defense” if they can convince a jury that the abortion was performed in a case of rape or incest in which they were provided with a police report; or to “prevent the death of the pregnant woman” from causes other than suicide.
The other two laws being challenged are a 2021 law that bans abortions in most cases after about six weeks of gestation, which took effect Aug. 19 but was then mostly superseded by the trigger law; and a 2022 law, SB 1309, that allows relatives of a fetus aborted after six weeks to file civil lawsuits against the doctors who perform the procedures and get $20,000 minimum damages. SB 1309 took effect Aug. 12 after the Idaho Supreme Court lifted a stay on its enforcement.
Monte Neil Stewart, arguing for the Idaho Legislature, told the justices, “This private cause of action, despite all the urgency that’s been cast, is a fine, clear, workable good.”
Stewart said he recommended following the reasoning in the U.S. Supreme Court’s Dobbs decision overturning Roe v. Wade, though that case involved the U.S. Constitution, not the Idaho Constitution, “not because it’s necessarily binding … but because of the excellence of its analysis.”
“They’re asking this court to hold that a woman has a right, unhampered, unhindered by state action, to abort her baby,” Stewart told the court. “That’s the right of a state in my judgment.”
Schoenfeld asked the court to find that the Idaho Constitution includes a right to terminate a pregnancy. Such a decision, he said, would mean strict scrutiny applies when that right is regulated, meaning courts would be required to evaluate the state’s interests against the interests of the woman. That could mean regulations on later-term abortions, he said, that didn’t apply to abortions earlier in pregnancy.
Stewart argued, “One you acknowledge that that fetus is a being and is indisputably human, you’re dealing with a human from the beginning to the end. So any line is going to be arbitrary.”
After more than two and a half hours of arguments and questions, the high court took lawsuits against the three laws under advisement, and will “render a decision accordingly,” in the words of Chief Justice Richard Bevan.
Every justice asked questions during the arguments, with Justices Greg Moeller and Robyn Brody particularly peppering Schoenfeld with questions, and Justices John Stegner and Colleen Zahn posing numerous queries to Larrondo, who argued for the state. Bevan joined in when the justices questioned Stewart, who argued on behalf of the Legislature.
After Stewart suggested the court would necessarily have to become a legislature and decide which abortions should and shouldn’t be allowed if it decides there’s a right to abortion, Bevan noted, “Your clients can legislate,” and “leave it to them to figure it out after we declare the fundamental right.”
Stewart responded, “So then the Legislature comes back with another law? … I just think if you say there’s a fundamental right under the Idaho Constitution to abortion, to your grief you will immediately become and ever after remain legislators.”
When Zahn asked Larrondo if the fundamental right to liberty in the Idaho Constitution doesn’t include the right to decisions about one’s own body, Larrondo responded, “I’m saying the right to liberty stops when that decision about your own body takes a potential human life.”
Zahn questioned whether the Legislature is being inconsistent in arguing that life is the most important concern when it has a faith-healing law offering an affirmative defense from manslaughter charges to parents who allow their children to die from preventable medical conditions on religious grounds.
“I understand the state is arguing the state interest is protection of life,” Zahn said. “Do Idaho’s faith healing laws undercut that?”
Larrondo said, “I don’t think that those laws are really applicable here. … These laws respect religious rights.”
Moeller asked Larrondo if the state’s law would still withstand constitutional scrutiny if it didn’t include the affirmative defense for abortions to “prevent the death” of the mother.
Larrondo said that could be “problematic,” “if there is no ability to protect the woman’s life … especially pre-viability where both the fetus and the mother would die.” But she said it’s “certainly not … before us to decide today.”
The arguments also focused on debate over whether the court should consider the history of Idaho’s criminal abortion laws, or whether an earlier Idaho Supreme Court decision set the standard for determining fundamental rights as independent of those concerns.
Moeller asked Schoenfeld about a 1901 Idaho Supreme Court criminal case in which the court said abortion “violates decency” and “divine law,” along with “the criminal statutes of this state.”
Schoenfeld said that was a case where a doctor had left a bleeding patient on the table. In legal arguments submitted to the court, he cited ads for abortifacients in Idaho newspapers before and after statehood, and said early Idaho criminal abortion laws were never reviewed for constitutionality.
Moeller asked Schoenfeld, “Are you suggesting that this right was intentionally placed into the Constitution by the founders … or that it was put there inadvertently, or that it was just kind of latent and hidden and we just recently discovered it? Or are you suggesting that our jurisprudence has somehow pulled that out?” Or, he asked, that it’s a “reflection of our modern times?”
Schoenfeld said when rights were guaranteed in the Constitution, “The founders and framers recognized that those were not static … and would evolve over time.” He cited an early Idaho Supreme Court decision holding that forced sterilization of mentally ill Idahoans was constitutional, and said the court would never hold that today.
He listed numerous other states with similar constitutional provisions that have held that their constitutions include a right to abortion.
The justices will issue their decision in writing in the coming weeks.
Betsy Z. Russell is the Boise bureau chief and state capitol reporter for the Idaho Press and Adams Publishing Group. Follow her on Twitter at @BetsyZRussell.
This article originally appeared in the Idaho Press, read more on IdahoPress.com.
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