In a 3-2 decision Friday, the Idaho Supreme Court allowed the state’s total abortion ban to take effect, as well as a Texas-style “heartbeat” law that allows relatives of an unborn child to sue abortion providers for up to $20,000 — while legal challenges to both laws are ongoing. In the ruling, written by Justice Robyn Brody, the court found that the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization “altered the landscape” of abortion law in the United States, thus allowing the bans to be enforced. The abortion ban will go into effect on August 25; the heartbeat bill went into effect immediately after the ruling was delivered.
In the ruling on the state’s total abortion ban, Brody said that the petitioners, Planned Parenthood and an abortion doctor, could not demonstrate a substantial likelihood of success on the merits in the post-Dobbs constitutional system, or a clear right to an injunction against the law.
“Moreover, 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, noting that before the Roe v. Wade decision declared a federal right to an abortion, it had been a criminal offense in the state of Idaho for a long time, going all the way back to its time as a federal territory, and for 26 years before its state constitution was adopted in 1890. Brody also wrote that the petitioners’ case was weakened by the fact that they were attempting to read the right to an abortion into the state constitution. “In short, given the legal history of abortion in Idaho, we cannot simply infer such a right exists absent Roe without breaking new legal ground, which should only occur after the matter is finally submitted on the merits” she wrote.
In a ruling on the “heartbeat” law within the same decision, Brody again concluded that the petitioners did not have a substantial likelihood of success on the merits, nor a clear right to an injunction against the law.
In the lawsuit, the petitioners argued that enforcing an abortion ban through civil penalties, while it could not be enforced by criminal liability, violated the separation of powers provisions of the Idaho state constitution. “The force of Petitioner’s separation of powers argument, however, essentially hinged on one fact—the criminal liability provision remained dormant while the civil enforcement law was allowed to take effect,” Brody wrote. “The criminal liability provision, however, is no longer dormant,” she added, citing a July ruling from the 11th Circuit Court of Appeals that upheld Georgia’s ban on abortions after a heartbeat could be detected, which then triggered the criminal liability provision in Idaho law.
“In sum, in the post-Dobbs legal landscape, Petitioners cannot establish a substantial likelihood of success on the merits or a ‘very clear’ right that will be irreparably injured if the preliminary stay against implementing S.B. 1309 is vacated,” Brody concluded.
The state supreme court’s decision comes as the Department of Justice filed its own lawsuit challenging the total abortion ban, claiming that the law’s exception for cases where the life of the mother is at risk is too narrow, and runs the risk of doctors violating federal law.