Justices ask pointed questions of attorneys about abortion laws at Idaho Supreme Court hearing

Decision expected in the coming weeks on constitutionality of three abortion laws

By: - October 6, 2022 3:03 pm

The Idaho Supreme Court hears oral arguments Thursday regarding abortion laws passed by the Idaho Legislature. (Darin Oswald/Idaho Statesman)

Attorneys for Planned Parenthood and the state of Idaho argued over the fundamental right to have an abortion at the Idaho Supreme Court on Thursday morning in a case considering the constitutionality of three Idaho abortion laws, including a near-total abortion ban that has been in effect for six weeks.

Planned Parenthood and one of its abortion providers, Dr. Caitlin Gustafson, filed three separate challenges with the Idaho Supreme Court, beginning with the civil enforcement bill — also known as the heartbeat bill — in April. Two other challenges were filed 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.

Alan Schoenfeld, the attorney for Planned Parenthood who argued before justices on Thursday, said Idaho courts throughout history have held that under the state’s constitution, there is a fundamental right to privacy and to make familial decisions. Schoenfeld said those rights are included in Article I of the Idaho Constitution, which specifies certain inalienable rights such as enjoying and defending life and liberty, pursuing happiness and securing safety.

“The absence of a specific constitutional provision dealing with right to privacy does not compel the conclusion that no such right exists,” Schoenfeld said.

He added that a pregnancy is 40 weeks long at full term and can have a profound effect on a person’s physical and mental health during and after the pregnancy, and another child can affect other children in a family. Schoenfeld said the right to choose whether to see that pregnancy through is implicit in Idaho’s constitution.

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.

Justice Robyn Brody asked Schoenfeld why the court should determine a question of constitutionality when lawmakers throughout Idaho history have banned the procedure, extending back to the time of the state’s founding. Schoenfeld said an Idaho court has never ruled on the constitutionality argument with respect to abortion until now and said the trigger law does not qualify as a reasonable regulation under state law.

“What we’re dealing with here isn’t a regulation, it’s a ban,” he said.

Idaho Supreme Court Chief Justice G. Richard Bevan and Justice John R. Stegner hear arguments from Monte Stewart, representing the Idaho Legislature, on Thursday. (Darin Oswald/Idaho Statesman)

Deputy Attorney General Megan Larrondo argued there is no fundamental right to abortion in the Idaho Constitution, and said the ban is part of the state’s compelling interest to protect life.

Justice Colleen Zahn asked Larrondo how the abortion ban can stand alongside Idaho’s faith healing laws if the argument is that it protects life. Idaho has a faith-healing exemption in statute that protects parents from prosecution if they deny life-saving care to their children on religious grounds, according to previous Idaho Capital Sun reporting.

“Faith healing laws are different because they’re not intended to take a life,” Larrondo said. “This is targeted at a procedure.”


Idaho Legislature’s attorney says justices are not legislators 

Justice John Stegner asked Larrondo whether the fetus’ life takes precedence over the pregnant person’s health since health is not mentioned in Idaho’s abortion ban law. Larrondo said the statute is focused on life rather than health, echoing what Sen. Todd Lakey, R-Nampa, said during meetings at the Idaho Legislature about the law in 2020.

“So you’re saying we don’t care about the woman’s health,” Stegner said.

“We care about the woman’s health, but we care about the life of the fetus as well,” Larrondo responded.

OBGYNs speak out: Doctors say Idaho’s abortion laws will cause harm to patients

Attorney Monte Stewart split time with Larrondo to represent leaders of the Idaho Legislature, Senate Pro Tem Chuck Winder, R-Boise, and Speaker of the House Scott Bedke, R-Oakley. Stewart told the justices if they do anything but uphold the laws as they are, it will be a breach of the separation of powers and said some of the oral arguments from justices sounded like a legislative committee. 

“I just think if you say there’s a fundamental right (to abortion), you will hereafter become legislators on this issue,” Stewart said.

Justices asked Schoenfeld if there was a different law that could be crafted that would be acceptable, such as a ban on abortions after 15 weeks or 20 weeks, or if it should be at the point the fetus is viable, which is about 24 weeks. Stewart said viability is “not a great line” to use, and any line drawn will not be for the judiciary to decide.

“The Legislature is in charge of drawing those lines, acknowledging they’re not perfect,” Stewart said. “Those laws will change, that’s the very nature of the democratic process.”

Idaho Supreme Court Justice Gregory W. Moeller comments during oral arguments on Thursday. (Darin Oswald/Idaho Statesman)

Justice Moeller questions reasonable basis for breadth of civil enforcement law 

Justice Gregory Moeller asked Stewart about the civil enforcement law, which 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, but legislators and attorneys have acknowledged nothing in the statute prevents the family members of a rapist from filing lawsuits.

Moeller asked what the reasonable basis is for allowing a rapist’s family member to sue, especially when Idaho’s statutes relating to wrongful death civil suits do not allow extended family members such as an aunt or uncle to file a similar claim.

Stewart said it’s reasonable because the loss of a potential niece or nephew would be particularly painful because abortion is an intentional act. He acknowledged a lawsuit could still be filed by a relative even if the family members had not been in touch for many years.

Idaho Planned Parenthood plaintiff says she looks forward to justices’ decision 

Gustafson, an abortion provider with Planned Parenthood who is a plaintiff in the cases, told the Idaho Capital Sun after the hearing that she was happy to hear some of the questions from justices and thought several of them seemed uncomfortable with the laws as written.

“Some of them just even spoke to that discomfort really openly,” Gustafson said. “I look forward to hearing what the justices have to say.”

Nate Poppino, spokesman for the Idaho Supreme Court, said the justices have a discussion following oral arguments, and will have an oral conference at a later date before issuing a written decision. There is no set date for a decision.


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Kelcie Moseley-Morris
Kelcie Moseley-Morris

Kelcie Moseley-Morris is an award-winning journalist who has covered many topics across Idaho since 2011. She has a bachelor’s degree in journalism from the University of Idaho and a master’s degree in public administration from Boise State University. Moseley-Morris started her journalism career at the Moscow-Pullman Daily News, followed by the Lewiston Tribune and the Idaho Press.