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Two hours, three cases — one Idaho Supreme Court hearing will decide fate of abortion laws 

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Two hours, three cases — one Idaho Supreme Court hearing will decide fate of abortion laws 

Oct 03, 2022 | 6:30 am ET
By Kelcie Moseley-Morris
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Two hours, three cases — one Idaho Supreme Court hearing will decide fate of abortion laws 
Description
Chief Justice G. Richard Bevan listens as representatives from counsel make their cases 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 Aug. 3, 2022. (Sarah Miller/Idaho Statesman)

When the Idaho Supreme Court convenes on Thursday to hear oral arguments on the merits of three Idaho abortion laws, the state’s trigger ban prohibiting nearly all abortions will have been in effect for exactly six weeks.

A Texas-style civil enforcement bill allowing immediate and extended family members to sue medical providers who perform abortions went into effect at the same time as the total ban.

Now opponents of the two laws, along with a third six-week abortion ban that was superseded by the trigger ban, will have one hour to convince Idaho Supreme Court judges that the laws should be struck down entirely.

Attorneys for the Idaho Attorney General’s office and the Idaho Legislature will split one hour to make their case that the laws should remain in effect.

It will be in the hands of Idaho’s Supreme Court justices from there.

Planned Parenthood and one of its abortion providers, Dr. Caitlin Gustafson, filed three separate challenges with the court, beginning with the civil enforcement bill — also known as the heartbeat bill — in April. The organization filed the other two challenges 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.

In a series of briefings since then, the two sides have made their arguments in writing.  

What happened at the last hearing?

The Idaho Supreme Court held a hearing Aug. 3 to address procedural questions around the trigger ban and civil enforcement law, to determine whether the trigger law’s implementation should be paused, whether a pause on the civil enforcement law should be lifted, and whether the two lawsuits should be consolidated and handed to a lower court for additional development.

The court decided not to place a stay on the trigger law, allowing it to go into effect, and lifted the pause on the civil enforcement law. Justices decided not to send it to a lower court, but did consolidate the cases into one, including the lawsuit against the six-week ban.

Justice Robyn Brody wrote the majority opinion, and Chief Justice G. Richard Bevan and Justice Gregory Moeller concurred. Justice John Stegner wrote that he agreed with the decision to consolidate the cases and retain them in the supreme court, but said he disagreed with the decision not to stay the ban and lift the pause on the civil enforcement law. Justice Colleen Zahn agreed with Stegner’s opinion.

Planned Parenthood argues Idaho’s abortion bans are unconstitutional

Attorneys for Planned Parenthood made roughly the same arguments in legal filings challenging the trigger ban and the six-week ban, which passed the Idaho Legislature in 2020 and 2021, respectively.

The trigger law is also called the total abortion ban because it prohibits nearly all abortions.

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. 

The six-week ban, as the name implies, would ban abortions after fetal cardiac activity can be detected by ultrasound, which generally occurs around six weeks of pregnancy. When the total ban went into effect, it overruled the six-week ban.

In court documents, attorneys for Planned Parenthood argue the bans violate:

  • A fundamental right to privacy in making “intimate familial decisions,” as outlined in Article I of the Idaho Constitution, which outlines certain inalienable rights, including enjoying and defending life and liberty and pursuing happiness and securing safety.
  • The equal protection clause of the Idaho Constitution, in part because the ban burdens women by “forcing them into the home and into the role of mother without their consent.” They contend this also violates Idaho’s Human Rights Act, which prohibits sex discrimination.
  • The Idaho Constitution’s due process clause, because they say the provisions of the trigger ban are too vaguely written and do not give sufficient definitions of terms such as “clinically diagnosable pregnancy” and what would constitute an action meant to prevent a pregnant person’s death. Due process requires clarity in the law, they argue.

Deputy Attorney General Megan Larrondo has argued there is no right to abortion in the Idaho Constitution, and the courts have never called a person’s right to decide whether to have children a constitutional right. Larrondo also combated the equal protection claims by saying the law treats all who perform abortions equally and the statute applies to all pregnant people.


Data visualization made with Flourish

Separation of powers, right to privacy at issue in Idaho civil enforcement law

The civil enforcement law is modeled after a similar law in Texas that allows civil lawsuits against medical professionals who perform abortions after fetal cardiac activity is detected, which is typically around six weeks of pregnancy.

The law awards no less than $20,000 to the mother, father, grandparents, siblings, aunt or uncle of the fetus or embryo in a successful lawsuit. It includes exceptions for rape, incest or a medical emergency that would cause death or create serious risk of substantial harm to the patient. 

On top of similar arguments about a fundamental right to privacy and a violation of the equal protection clause, Planned Parenthood argues the law violates the separation of powers enumerated in the state constitution since the law is embedded in the criminal code but does not allow any executive enforcement.

“Distinct from a tort or any other civil remedy provision, which exists to remedy a wrong done specifically to an individual claimant, Senate Bill 1309 exists to dangle a carrot in front of … ordinary citizens to enforce the state’s policies and preferences where the state explicitly cannot, and where some of these citizen enforcers suffer no actual harm,” the attorneys wrote in the complaint.

During debate on the bill in the Idaho Legislature earlier this year, the sponsor of the bill, Rep. Steven Harris, R-Meridian, acknowledged nothing in the bill as written would prevent the family members of a rapist from filing lawsuits. Gov. Brad Little said that particular fact gave him pause when he signed the bill in March.

They also argue the statute of limitations is too long at four years, double the length of time allowed for someone to file a wrongful death or personal injury claim.

In court documents, Larrondo has argued the lawsuit does not belong before the Idaho Supreme Court, calling the state of Idaho the “wrong party” and the Supreme Court the wrong forum for the case. She also argues that the law does not violate separation of powers because nothing in the constitution prevents the Legislature from creating civil causes of action.

“The heartbeat act’s civil action does not ‘deputize’ private citizens to do what the executive could not do, but rather expresses the state’s value for unborn life by allowing private citizens to have that value recognized if they so choose,” she wrote in a brief.

A courtroom with many seats filled but many left empty, and an attorney makes oral argument
Attorneys for Planned Parenthood Great Northwest and for the state of Idaho argued Wednesday before the Idaho Supreme Court in the first hearing in August 2022 over multiple lawsuits against the state’s anti-abortion laws. (Screenshot from Idaho In Session)

Idaho Supreme Court expected to issue decision in following weeks

Following the hearing, justices will consider the arguments and issue a ruling, but there is no set timeline for when that ruling will be issued.

Idaho in Session will livestream the court proceedings at 9 a.m. Thursday. The full list of documents for all three cases is located on the State of Idaho Judicial Branch’s Cases of Interest page.