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Idaho Supreme Court allows trigger law banning nearly all abortions to take effect


Idaho Supreme Court allows trigger law banning nearly all abortions to take effect

Aug 12, 2022 | 7:56 pm ET
By Kelcie Moseley-Morris
Idaho Supreme Court allows trigger law banning nearly all abortions to take effect
Monte Neil Stewart of Las Vegas, representing the Idaho Legislature, speaks to the Idaho Supreme Court regarding proceedings for two lawsuits pertaining to Idaho abortion laws on Wednesday. (Sarah Miller/Idaho Statesman)

Idaho’s trigger law banning abortion in nearly all cases will go into effect on Aug. 25, and the heartbeat law allowing civil lawsuits against medical providers will go into effect immediately following an opinion from the Idaho Supreme Court on Friday evening. 

The opinion did not make a determination regarding the law banning abortion after six weeks of pregnancy, which is scheduled to take effect in one week. 

The decision comes after a hearing on Aug. 3 to address procedural questions about whether the trigger law’s implementation should be paused, whether a pause on the heartbeat law should be lifted, and whether the two lawsuits should be consolidated and handed to a lower court for additional development.

“As of August 19, 2022, the state will be able to criminally enforce the heartbeat act’s prohibition on abortions and, in turn, carry out its duty to ensure the laws of Idaho are faithfully executed,” the opinion said. 

The opinion is written by Justice Robyn Brody, and Chief Justice Richard Bevan and Justice Gregory Moeller concurred. Justice John Stegner concurred with the decision to consolidate the cases and not send them to district court, but dissented with the decision not to grant a stay and to vacate the pause on the heartbeat law. Stegner added that he would have also stayed enforcement of the six-week ban on abortions that will take effect Aug. 19. 

“No one seriously disputes that the petitioners have established a showing of irreparable harm if a stay is not granted. That is all that is required under Idaho’s rules of procedure,” Stegner said. “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. This argument fails because it is premised on a decision we have not yet made. Staying the enforcement … would preserve the status quo that has been in effect for nearly 50 years and allow the parties the opportunity to craft their arguments and for us to consider the merits of these cases with the care and attention they deserve.”

Justice Colleen Zahn concurred with Stegner’s dissenting opinion.

Idaho Supreme Court allows trigger law banning nearly all abortions to take effect
Justice Gregory W. Moeller asks for clarification from Alan Schoenfeld, a New York City lawyer who is part of the legal team representing Planned Parenthood, as the lawyer makes a case for procedures in two lawsuits pertaining to Idaho abortion laws: the state trigger law and the law allowing people to sue abortion providers at the Idaho Supreme Court in Boise on Wednesday, Aug. 3, 2022.

Planned Parenthood sued the state of Idaho in three separate cases: one regarding Idaho’s law to ban nearly all abortions that will take effect Aug. 25; one similar ban that allows abortions up to six weeks of pregnancy that will take effect Aug. 19; and a Texas-style civil law that allows family members to sue medical providers who perform an abortion.

The court also decided to consolidate the three cases into one and retain its jurisdiction rather than sending it to a lower court. Justices in the Aug. 3 hearing signaled that the case could be remanded to a lower court if there was a need for testimony from physicians, for example.

During the hearing earlier this month, attorneys for Planned Parenthood said the vagueness of the trigger law’s language would lead to impossible situations for medical professionals to navigate, with no clarity on what would constitute a “good faith” judgment that led to an abortion in a medical emergency. 

According to the language of the trigger law, affirmative defenses are allowed for abortion in the case of rape, incest and to save the pregnant person’s life. An affirmative defense is not the same as an exception, and instead means that if someone is prosecuted under the trigger law, those situations are acceptable as a defense in court. In the case of rape or incest, the victim must also provide a copy of a police report. 

Oral arguments on the now-consolidated case are scheduled to take place at 9 a.m. Sept. 29 in Boise.

Bans Off Our Bodies abortion rights march in Boise
A Bans Off Our Bodies rally attendee holds up a sign in front of the Idaho Capital Building on May 14, 2022. Several thousand Idahoans attended the event to listen to guest speakers and march toward the Idaho Supreme Court. (Christina Lords/Idaho CapitalSun)

Advocates, opponents react to Idaho Supreme Court decision

Director of the Idaho Family Policy Center Blaine Conzatti, who helped draft and pass the heartbeat law and supported the trigger law, sent a statement Friday evening saying it was a day the pro-life movement had worked toward for decades.

“As we have been saying for months, our Idaho heartbeat law is constitutionally, scientifically and morally sound. We were confident that our heartbeat law would withstand judicial scrutiny, and today is a life-saving step in that direction,” Conzatti wrote. “We remain confident that further litigation on this issue will result in the same outcome, and we expect that thousands of babies will be receive the opportunity to live their lives as a result of this law.”
Representatives from Planned Parenthood sent a statement as well lamenting the decision, saying it allows the Idaho Legislature to make health care decisions for patients and punishes medical providers.

“It’s been a little over a month since the U.S. Supreme Court disregarded 50 years of precedent and threw patients across the country into a world of chaos, fear, and confusion,” said Rebecca Gibron, CEO of Planned Parenthood Great Northwest, Hawai‘i, Alaska, Indiana, Kentucky. “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 this fight is not over. These cases and our fight to ensure that every Idahoan has access to legal, safe abortion care will continue.”