BOISE — All five Idaho Supreme Court justices were engaged and actively questioning the parties as they heard arguments Wednesday on three procedural questions involving two lawsuits over Idaho’s far-reaching anti-abortion laws, including whether either or both should be stayed, preventing them from taking effect while they’re challenged in court.
Justice Robyn Brody called the two challenged statutes, which overlap and in some areas supersede each other, “a bit of a maze.”
She told Nevada attorney Monte Neil Stewart, who argued on behalf of the Idaho Legislature in favor of allowing both laws to take effect immediately, “A lot has changed in the last 90 days, and continues to change, and it’s very challenging for all of us to sort through.”
At one point, Justice Greg Moeller and New York attorney Alan Schoenfeld, who argued on behalf of Planned Parenthood, had an exchange in which each told the other they “respectfully” disagreed over whether factual issues about medical practice needed to be explored in the cases.
Justice Colleen Zahn told Deputy Idaho Attorney General Megan Larrondo, “None of us are medical providers,” as Larrondo sought to counter Schoenfeld’s arguments that the state’s “trigger” law, which is set to take effect Aug. 25, is unconstitutionally vague, in part because it would allow abortions to “prevent the death” of the mother, while not defining how imminent or likely death must be in those cases.
“That just has to be determined by the physician in his good-faith medical judgment,” Larrondo responded. “There is enough here for a physician to know broad strokes what is prohibited.”
At the conclusion of the hour-long arguments, Chief Justice Richard Bevan said, “This matter is under consideration by the court … and we will render a decision accordingly.” The court is expected to issue its decision in writing; no time frame was specified.
Rebecca Gibron, CEO of the Planned Parenthood group that filed the lawsuits, said afterward, “I think it went well. I thought we presented all of the core flaws with the two bills, and I’m feeling hopeful that the justices will do the right thing on behalf of Idahoans.”
Larrondo said she, too, thought it went well. “The justices seem to understand our arguments, and we’re hopeful for a favorable, quick decision,” she said.
Stewart said, “The court conducted a fair and impartial hearing that we believe will be helpful to the justices in making their decision. The Legislature appreciates its opportunity to explain to the court its views on these important matters.”
He surprised the justices by telling the court that the Legislature’s “paramount interest here” is to lift the stay on SB 1309, the Texas-style abortion lawsuits law that authorizes relatives of a fetus aborted after about six weeks gestation to sue doctors for minimum $20,000 damages. “That’s the Legislature’s paramount interest,” he said. He noted that SB 1309, passed this year, amended a 2021 “fetal heartbeat” anti-abortion law that includes exceptions for medical emergencies involving “substantial and irreversible impairment of a major bodily function,” and said, “The Fetal Heartbeat Act is sound and valid and constitutional in every way. And the civil enforcement of it is entirely valid.”
Moeller said, “I’m confused at the Legislature’s priority of the civil sanction statute, as opposed to the total ban,” contained in the 2020 “trigger” law that’s also being challenged. That law makes all abortions felonies in Idaho, at any stage of gestation, with only narrow exemptions for cases of rape or incest in which a police report is provided to the doctor; or to prevent the death of the mother by means other than suicide.
That trigger law is the target of a federal lawsuit filed Tuesday by the U.S. Justice Department, which charges that it violates federal laws requiring hospitals receiving Medicare funds to provide emergency care.
Stewart said the Legislature intended the fetal heartbeat law to go into effect first; it’s currently slated to take effect Aug. 19, “which will endure for all of about a week until the 25th. But then you will have what the Legislature envisions as the permanent enforcement solution,” he said. “What is it? The permanent enforcement solution is executive-branch enforcement through criminal law of all unlawful abortions in this state,” referring to the trigger law.
That prompted Brody to interject, “Hold on just a second. Let’s look at that assertion.”
She said, “When I look at these, when the dust settles on Aug. 25 and both of these laws go into effect … now we have these two competing criminal standards. … That seems to provide two very different statutory schemes for medical providers.”
While Stewart argued that when the trigger law took effect, the criminal enforcement of the “fetal heartbeat” provision would end and be superseded by the trigger law but the civil lawsuit mechanism would continue for a “subset of all unlawful abortions in this state,” Brody asked Larrondo if the whole “fetal heartbeat” law, including the civil lawsuits, would just “disappear” when that law is superseded by the trigger law on Aug. 25.
Larrondo, arguing for the state, responded that she thought that was a reasonable reading of the interplay between the two.
Bevan warned as the arguments began that while they “may touch on the merits” of the cases, they were focused on “specific procedural questions that were identified for the parties.”
It was the procedural question about whether the two laws should be stayed that brought out the most pointed arguments about whether the two laws are constitutional or not.
Schoenfeld told the justices that the trigger law suffers from “impossible and irreparable vagueness,” including in allowing an abortion only to prevent the death of the mother. “Must a woman’s death be certain?” he asked. “Must it occur the next day or week?”
And he pointed to wording in the law requiring any abortions performed under the exceptions to be done in a way that provides the best opportunity for the fetus to survive as “nonsensical,” saying especially early in a pregnancy, that’s impossible. “It’s written in a way that makes it impossible to comply with or invoke, ensuring that no provider will provide an abortion, even where the mother’s life is at stake, or even in cases of rape or incest,” he said.
Moeller questioned Schoenfeld’s argument that the Idaho Constitution indirectly guarantees a right to abortion, though Schoenfeld said other constitutional factors alone should warrant staying both laws.
“Abortion was a crime dating back to Idaho’s territorial era, dating back to 1863,” Moeller said, before the Idaho Constitution was drafted. “The only thing that changed was that in 1973, we had Roe vs. Wade. … It didn’t find a right to abortion in the Idaho Constitution.” He asked Schoenfeld, “Has it always been there, or did it somehow arise as a result of the Roe decision?”
Schoenfeld said the “wisdom” of Idaho’s founding fathers was that they included strong guarantees of the “right to decisional autonomy … to enjoy and defend life and liberty.” Originally, those rights were guaranteed only to men, he said, because women couldn’t vote. But he said numerous state courts have found that past criminal prohibitions don’t foreclose current recognition of constitutional rights, including abortion and other issues, such as homosexual sodomy laws.
Larrondo countered, “There is no way that the framers of the Idaho Constitution were thinking that they were enshrining as a fundamental right something that was criminally prohibited when they were drafting that document. … It is not the place of this court to be deciding what’s best for Idaho now. It’s the place for the court to be looking at what the drafters of the Idaho Constitution intended.”
She suggested the justices follow the lead of the U.S. Supreme Court in its Dobbs decision overturning Roe v. Wade. “This court … has been strongly guided by how the U.S. Supreme Court has interpreted the federal constitution when there’s an analogous provision, unless there’s a really good reason that Idaho’s history and circumstances compel a different reasoning,” she said.
Stewart said he believed the court’s current stay on SB 1309 is “perpetuating in Idaho the Roe/Casey abortion regime, which as of June 24 was stripped of all legitimacy” by the U.S. Supreme Court. “Yet it’s still operating in this state because of that stay,” he said. “Because of that stay, preborn children are being killed in Idaho, contrary to duly enacted and wholly valid statutes.”
He said the Legislature would like the stay to be lifted immediately, on the same day as the arguments.
All three parties told the justices they’d support consolidating not just the two cases at hand, but all three pending state cases; Planned Parenthood last week filed a third lawsuit challenging the 2021 fetal heartbeat law. Consolidating the cases could still allow the court to cite different grounds in its decisions on the fate of each law.
Several hours after the arguments, the plaintiffs gathered for a news conference on the Idaho state Capitol steps. Dr. Caitlin Gustafson, a rural family doctor and co-plaintiff in all three lawsuits, said, “I cannot stand by while Idahoans are stripped of their rights to safe reproductive health care and doctors are stripped of their right to provide their patients with safe, essential medical care.”
“These bans are not pro-life,” she said, “but rather are dangerous and life-threatening for Idahoans. … If these bans are allowed to go into effect later this month, patients with miscarriages, tubal pregnancies, high-risk health conditions, cancers that need to be treated, and wanted pregnancies with tragic fetal conditions that are not compatible with life may be forced into situations that put their health and their lives at risk.”
“Doctors will lose precious time caring for patients while waiting for symptoms to become life-threatening,” she said, “and will be forced into this untenable situation, stuck between breaking the law and breaking the oath that we take to provide the standard of medical care to our patients. ... These laws were written without consulting medical experts and as a result put Idahoans in harm’s way.”