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Abortion will become illegal in Idaho as state Supreme Court declines to pause trigger law

Aug. 12, 2022 Updated Fri., Aug. 12, 2022 at 9:18 p.m.

An attendee at Planned Parenthood’s Bans Off Our Bodies rally for abortion rights holds a sign reading “Idaho the women as property state” outside of the Idaho Statehouse in downtown Boise on May 14.  (Sarah A. Miller/Idaho Statesman)
An attendee at Planned Parenthood’s Bans Off Our Bodies rally for abortion rights holds a sign reading “Idaho the women as property state” outside of the Idaho Statehouse in downtown Boise on May 14. (Sarah A. Miller/Idaho Statesman)
By Nicole Blanchard Idaho Statesman

BOISE – In two weeks, Idaho residents will no longer be able to seek abortions in state after the Idaho Supreme Court earlier this week let the state implement its near-total abortion ban.

The decision came a little more than a week after a hearing addressed two lawsuits filed by Planned Parenthood in recent months. The first challenged an Idaho law that would let certain family members of a fetus sue health care professionals who perform abortions. The second challenged a state law that bans nearly all abortions.

The U.S. Supreme Court triggered the Idaho ban in June when it overturned landmark abortion cases Roe v. Wade and Planned Parenthood v. Casey, which granted constitutional rights to the procedure. The ban will take effect Aug. 25.

The Idaho Supreme Court also vacated a stay granted in April that held off Senate Bill 1309, which allowed certain family members of a fetus to sue medical providers if an abortion is performed after roughly six weeks of pregnancy, before many women know they’re pregnant.

The court rejected requests to send the abortion ban case to a lower court and decided to consolidate the two lawsuits, plus a third challenging Idaho’s fetal heartbeat law, into a single case.

Planned Parenthood has also filed a lawsuit on a third abortion law that bans abortions after the detection of a so-called fetal heartbeat, which medical experts said is more accurately described as electrical activity.

Altered landscape

In the Friday decision, Idaho Supreme Court justices argued that Dobbs v. Jackson Women’s Health Organization, the decision which overturned Roe and Casey, “altered the landscape” around abortion by returning decisions to the states.

The court said it declined to implement the pause on the abortion ban because Planned Parenthood’s lawyers didn’t demonstrate a substantial likelihood that their argument would be successful. Even if the organization demonstrated that irreparable harm would come from banning abortions, “this alone cannot permit the extraordinary remedy (they) seek,” the court wrote.

“What (Planned Parenthood is) asking this court to ultimately do is to declare a right to abortion under the Idaho Constitution when – on its face – there is none,” the decision said.

The court pointed out that, before the Roe v. Wade decision in 1973, abortion was a crime in Idaho dating back to the state’s days as a territory.

The decision to terminate the existing stay on Senate Bill 1309 is complex, the court said. The justices found merit in Planned Parenthood’s argument that the “civil liability law” – allowing family members to sue over abortions performed after six weeks – could overstep the powers of legal enforcement bestowed on the executive branch of government.

But the civil law is attached to a criminal statute – the fetal heartbeat law, which, at the time the stay was implemented, had not been triggered. That law was triggered last month by a court decision in Georgia and will go into effect on Aug. 19.

Because the state can now enforce the criminal law, the Idaho court said, it’s not entirely clear that the civil law violates Idaho’s separation of powers.

The court said Planned Parenthood has raised “serious concerns about the lack of clarity” in Idaho’s abortion laws and said there are “complex legal questions which must be answered” as the cases move ahead.

Two justices, John R. Stegner and Colleen D. Zahn, disagreed in part with the decision. In a dissenting opinion, Stegner wrote that he believed stays, while “an extreme remedy,” should have been enforced on the total ban and the fetal heartbeat law, including the civil law.

Stegner said the Dobbs case marks the first time a once-fundamental right has been revoked, creating “significant societal upheaval” that could have irreparable consequences.

“We – both Idaho’s citizens and this court – now find ourselves in uncharted legal waters, waters we should navigate with great caution and care,” he wrote.

Anti-abortion advocates celebrate decision

In a news release, the Idaho Family Policy Center, which helped craft Senate Bill 1309, applauded the decision to allow the law to go into effect.

Blaine Conzatti, head of the organization, said in the release that he’s confident the law will stand up to legal scrutiny.

“This is the day that the pro-life movement has worked towards for decades,” Conzatti said. “Today is a great day for pre-born babies with beating hearts in Idaho!”

Planned Parenthood decried the decision in its own news release. The organization told the Statesman it will continue to provide abortions performed before six weeks of pregnancy until Aug. 25, when the complete ban takes effect.

“Tonight, the people of Idaho saw their bodily autonomy and reproductive freedom taken away,” said Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America in the 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.”

The Idaho Statesman has reached out to Gov. Brad Little and the Idaho attorney general’s office for comment.

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