Idaho Supreme Court to let abortion bans go into effect

By James Dawson (Boise State Public Radio News)
Aug. 13, 2022 12:34 a.m.

The Idaho Supreme Court Friday said it would not block the implementation of a near-total abortion ban set to take effect Aug. 25 and lifted its stay on a Texas-style abortion ban it ordered in April.

The split 3-2 decision deals a major blow to the three challenges filed by Planned Parenthood earlier this year seeking to overturn these laws.


Just three exceptions would be made under the near-total ban.

Cases involving rape, incest or when the life of the mother is in jeopardy could qualify as legal abortions, though advocates say those caveats are either unrealistic or are too vague for doctors to decipher while trying to avoid a two to five-year prison sentence.

An abortion rights protest outside of the Idaho state Capitol.

An abortion rights protest outside of the Idaho state Capitol.

Richard Rodriguez/Boise State Public Radio

The Texas-style law will allow families of an aborted fetus to sue the doctor performing the procedure for a minimum of $20,000.

Chief Justice Richard Bevan and Justices Robyn Brody and Gregory Moeller signed on to the majority opinion with Justices John Stegner and Colleen Zahn dissenting.

The challenges remain ongoing, with oral arguments on the merits of the laws set for Sept. 29.


A separate lawsuit filed by the U.S. Justice Department in federal court to overturn the near-total abortion ban is also ongoing.

Writing for the majority, Brody said Planned Parenthood failed to meet two burdens of proof she said are required for the court to issue such an injunction: they must both prove the laws will cause irreparable harm and that their case would likely ultimately succeed.

“…even if [plaintiffs have] carried their burden of demonstrating that irreparable harm will flow from immediate enforcement of the Total Abortion Ban, this alone cannot permit the extraordinary remedy [they] seek,” Brody wrote.

Given that the U.S. Supreme Court in June overturned nearly 50 years of precedent first established by Roe v. Wade, Brody said this new legal landscape isn’t clear.

“…while [plaintiffs] have raised serious concerns about the lack of clarity in these provisions, both sides have given colorable interpretations of these statutes,” she wrote.

During a hearing last week, Planned Parenthood argued the laws should be overturned for three reasons: they’re unconstitutionally vague, they discriminate against someone based on their sex and that there’s an inherent right for women to obtain abortions under the Idaho constitution.

Justices pushed back on that last claim, pointing out abortion was outlawed in Idaho throughout its entire history until the 1973 Roe v. Wade decision.

Meanwhile, attorneys for the state and the Idaho legislature said lawmakers should be able to enact and enforce laws as they see fit, given that the U.S. Supreme Court handed back regulatory authority over abortions to the states.

In their dissent, Stegner and Zahn blasted the majority for refusing to offer a temporary stay to uphold the status quo while they sort out what is considered constitutional in the state.

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

A spokesperson for Planned Parenthood in an email said the organization is crafting its response.