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Will abortion ban take effect this month? Idaho Supreme Court hears arguments today.
Hearing will cover four aspects of two abortion lawsuits filed by Planned Parenthood
The Idaho Supreme Court will hear arguments around two of the four abortion lawsuits Wednesday morning in consecutive hearings. (Otto Kitsinger for the Idaho Capital Sun)
With a fourth lawsuit now in federal court from the U.S. Department of Justice, the litigation landscape around Idaho’s abortion laws is becoming crowded.
The Idaho Supreme Court will hear two of the four lawsuits Wednesday morning in consecutive hearings. The court originally planned to hear oral arguments over Idaho’s heartbeat law allowing civil lawsuits against medical professionals who perform an abortion. After the U.S. Supreme Court overturned Roe v. Wade at the end of June, triggering an outright ban on abortion in Idaho, the Idaho Supreme Court had a second lawsuit to consider.
In both cases against the state of Idaho, Planned Parenthood Great Northwest and one of its abortion providers in Idaho, Dr. Caitlin Gustafson, argued that the laws violate Article 1 of the Idaho Constitution, which states, “All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.”
Planned Parenthood argues based on decades of case law that the Idaho Supreme Court has held the right to decide “whether to procreate” is a fundamental right in the state’s constitution.
At Wednesday’s hearing, the court will hear lawyers for Planned Parenthood and lawyers for the state to argue over four issues:
- Whether the court should pause enforcement of the state’s law banning nearly all abortions, which is scheduled to go into effect Aug. 25
- Whether the court should lift an existing pause on the heartbeat bill, which would cause the law to go into effect immediately
- Whether the two lawsuits should be consolidated into one case
- Whether both cases should be transferred to a lower district court for further review
Need help parsing Idaho’s abortion lawsuits?
Here are details on four lawsuits surrounding Idaho’s abortion legislation.
Senate Bill 1385, also known as the trigger law
Passed: March 2020
Becomes law: Aug. 25
Status: The Idaho Supreme Court will consider the next steps for the law at a hearing Wednesday.
Summary: The law prohibits abortion in Idaho in nearly all cases, with potential defenses for rape, incest or to save a pregnant person’s life. In the case of rape or incest, a victim must provide a copy of a police report. If a medical provider violates the statute, they can be convicted of a felony with a sentence of two to five years in prison. Anyone who performs or assists in abortion can also have their license suspended for a minimum of six months or permanently.
Senate Bill 1309, also known as the heartbeat bill
Passed: March 2022
Becomes law: if the Idaho Supreme Court lifts a temporary pause on implementation that has been in place since April.
Status: The Idaho Supreme Court will consider the next steps for the law at a hearing Wednesday.
Summary: The law 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.
House Bill 366, also known as the “six-week trigger ban”
Passed: April 2021
Becomes law: Aug. 19, which is 30 days after a court upheld a similar ban in Georgia. However, it may be superseded by the 2022 trigger law if the Idaho Supreme Court upholds that law.
Status: Planned Parenthood filed its lawsuit over this bill on July 25, but the Idaho Supreme Court has not yet taken action on the matter.
Summary: The law criminalizes abortion after six weeks of pregnancy, when fetal cardiac activity can typically be detected by ultrasound. If a person violates the statute, they can be convicted of a felony with a sentence of two to five years in prison.
U.S. Department of Justice v. State of Idaho
The Department of Justice announced a lawsuit Tuesday against the state of Idaho, over the state’s trigger law, arguing that it conflicts with a federal law called the Emergency Medical Treatment and Labor Act. That act requires hospitals that receive federal Medicare payments to provide medical care to stabilize all patients who come to the hospital with a medical emergency.
The federal lawsuit says Idaho’s trigger ban on abortion violates the Supremacy Clause of the U.S. Constitution because it is in conflict with the act. The Justice Department wants the U.S. District Court for the District of Idaho to permanently bar Idaho officials from enforcing the law when abortion is used to treat a medical emergency.
The Idaho Legislature passed an abortion trigger law in 2020, making nearly all abortions a felony with legal defenses allowed only for rape, incest and to save the pregnant person’s life. The law included a clause that would make it effective 30 days after the U.S. Supreme Court issued a judgment that returns the authority to regulate abortion procedures to the states. That judgment became official on July 26.
The Idaho Legislature — which passed the anti-abortion bills behind the laws — received permission from the court to participate in both cases and defend its legislation. The Legislature filed a brief arguing the court should allow the heartbeat law and the trigger law to take effect, claiming that any other ruling “would constitute a manifest abuse” by the court.
Deputy Attorney General Megan Larrondo, representing the state, also argued that the Idaho Supreme Court should remove the pause on the heartbeat bill and should not pause implementation of the trigger law.
In a response brief, Planned Parenthood said its position is that both laws should be paused pending the outcome of the cases.
The Idaho Supreme Court will not determine the merits of each law at Wednesday’s hearing — only the four issues around how both cases will proceed.
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