Outside view: Idaho Supreme Court’s abortion decision based on flawed ‘originalism’ reasoning | Opinion

By Idaho Statesman editorial board

It should come as no surprise that the Idaho Supreme Court on Thursday issued a ruling fairly quickly upholding Idaho’s abortion ban. The justices didn’t have to do much work; all they had to do was copy and paste from the U.S. Supreme Court’s Dobbs decision, which overturned Roe v. Wade.

In shooting down a challenge to Idaho’s abortion ban, the Idaho Supreme Court took a page – or a few – from the U.S. Supreme Court.

The Idaho Supreme Court’s wording and reasoning mimics, at times verbatim, the U.S. Supreme Court’s wording and reasoning in its Dobbs decision.

“For us to read a fundamental right into the Idaho Constitution, we must examine whether the alleged right is so ‘deeply rooted’ in the traditions and history of Idaho at the time of statehood that we can fairly conclude that the framers and adopters of the Inalienable Rights Clause intended to implicitly protect that right,” according to the Idaho Supreme Court decision.

“The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition,” the U.S. Supreme Court decision reads.

The Idaho Supreme Court decision has us all go back to those glorious days of 1890 to determine whether abortion is deeply rooted in our state’s history and traditions. Of course, the court, by a tally of 3-2, finds that it was not.

However, we do not live in 1890 any longer, and this “originalist” reading of the Idaho Constitution, just like the “originalist” reading of the U.S. Constitution, is deeply flawed.

Possession of a semiautomatic weapon certainly was not deeply rooted in our history and tradition in the 1800s. Nor was the right of women to vote. Slavery was also considered constitutional back in the good ol’ days – not to mention “deeply rooted in the Nation’s history and tradition.”

Deeply rooted.

How many other rights and parts of life do we take for granted today that were not deeply rooted in tradition or history in 1889: interracial marriage, sexual orientation, birth control, integrated schools, etc.

Just like the Dobbs decision, the Idaho Supreme Court’s abortion ban and trigger law decision is based on a flawed premise.

It is the role of the judicial branch, after all, to “interpret” the law, not merely to “read” it.

And like the U.S. Supreme Court, the Idaho Supreme Court based its decision on whether abortion is a fundamental right – deciding, of course, that it is not.

The Idaho justices again mimic the U.S. Supreme Court by deciding that they can’t find the word “abortion” anywhere in the Idaho Constitution.

Indeed, it was treated as a crime, the court argues. That, in itself, is a specious argument; abortion was legal since the nation’s founding and through the first half of the 1800s.

But that’s not the point. The argument is whether the right to make a medical decision concerning your own body is a fundamental right – not necessarily what the medical decision is.

“That is our duty as the judicial branch: to sustain the rule of law – not to promote our personal policy preferences,” Idaho Supreme Court Justice Robyn Brody writes in the decision. “If we were to jettison that disciplined approach, even in the face of a uniquely emotional and politically divisive policy issue, the Idaho Constitution would no longer be the voice of the people of Idaho – it would be effectively replaced by the voice of a select few sitting on this Court.”

But by dragging us all back to the 1890s, that’s exactly what three Idaho Supreme Court justices have done.

Statesman editorials are the unsigned opinion of the Idaho Statesman’s editorial board. Board members are opinion editor Scott McIntosh, opinion writer Bryan Clark, editor Chadd Cripe, newsroom editors Dana Oland and Jim Keyser and community members Johanna Jones and Maryanne Jordan.