According to the State Supreme Court Idaho's near-total abortion ban is constitutional

 January 6, 2023

The Idaho Supreme Court upheld the state's near-total abortion ban, marking the latest legal victory for state trigger laws following the repeal of a federal right to abortion last year.

Planned Parenthood challenged the state's 2020 trigger law, which was set to take effect if the United States Supreme Court overturned Roe v. Wade last summer, according to The Washington Examiner's report.

The law only allows abortions if the mother's life is in danger or if the pregnancy is the result of rape or incest, and victims must file a police report.

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The majority opinion, written by Chief Justice Robyn Brody and joined by Justices Richard Bevan and Gregory Moeller, argued that plaintiffs failed to demonstrate that a right to abortion was enshrined in the state constitution's inalienable rights clause.

“What Petitioners are asking this Court to ultimately do is to declare a right to abortion under the Idaho Constitution when—on its face—there is none,” Brody wrote.

"In fact, before Roe announced a federal constitutional right to abortion in 1973, abortion had been a long-standing criminal offense in Idaho."

The majority opinion stated that in order to find an alleged fundamental right to abortion, the court must examine the state constitution and the intent of the framers of the inalienable rights clause.

"Applying that test to this dispute, the majority concludes there is no support for a conclusion that a right to abortion was 'deeply rooted' at the time the Inalienable Rights Clause was adopted," the ruling says.

The majority of the court also stated that "relevant Idaho history and traditions show abortion was viewed as an immoral act and treated as a crime." Colleen Zahn, the state's newest justice, and Justice John Stegner dissent.

Solemn duty

“This Court’s solemn duty is to protect the people and their rights from encroachment by the government,” Stegner wrote in his dissent. “That duty has gone unfulfilled today, and it is the people of Idaho who will suffer for it.”

The court indicated in August that it would reject Planned Parenthood's challenge, voting 3-2 to decline to stay the implementation of the trigger ban.

In August, the Justice Department of President Joe Biden filed a lawsuit against Idaho, claiming that the state's ban violates the Emergency Medical Treatment and Labor Act, specifically the requirement that hospitals provide emergency care to prevent serious risk to a mother's health.

On August 24, U.S. District Judge B. Lynn Winmill issued a limited injunction prohibiting the prosecution of abortions performed in emergency situations at hospitals that accept Medicare funds.

Arkansas, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, and Texas are among the other states with abortion trigger bans. Such bans are currently on hold in Utah and Wyoming pending legal action.

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