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Sept. 26, 2022

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Idaho Supreme Court hears arguments in abortion cases


BOISE, Idaho — The Idaho Supreme Court on Wednesday heard arguments from representatives for Planned Parenthood, the state and the Idaho Legislature that will determine how three abortion-related lawsuits will proceed.

The Wednesday procedural hearing didn’t address whether the laws are unconstitutional. Rather, the justices heard arguments to determine whether the cases stay in the Supreme Court, whether the court puts a hold on an abortion ban set to take effect this month and whether the two cases should be consolidated into one.

The hearing addressed two lawsuits filed by Planned Parenthood in recent months. The first challenged an Idaho law that would let certain family members of a fetus sue health care professionals who perform abortions. The second challenged a state law that bans nearly all abortions.

The justices began deliberations on the issues after the hearing. They have no deadline on when they must issue a decision.

In his opening argument, Planned Parenthood attorney Alan Schoenfeld urged the justices to stop the abortion ban law from taking effect.

The U.S. Supreme Court triggered the Idaho ban in June when it overturned landmark abortion cases Roe v. Wade and Planned Parenthood v. Casey. The ban will begin Aug. 25 unless the court pauses it.

Schoenfeld said the law, which provides exceptions when abortion is necessary to prevent the pregnant woman’s death, leaves physicians with only a vague idea of which situations would constitute legal abortions.

“Must a woman’s death be certain?” Schoenfeld asked. “Must it happen the next day or week?”

The law also requires an abortion performed to prevent a pregnant woman’s death be done with “the best opportunity for the unborn child to survive” — a provision Schoenfeld called “nonsensical.”

“(The law) is written in a way that makes it impossible to comply with,” he said.

Schoenfeld also argued that abortion is protected by Idaho’s Constitution and by state Supreme Court precedent, which have protected rights to privacy and bodily autonomy.

Justice Greg Moeller said abortion had been illegal in Idaho since the state was a territory, and its legality changed only in 1973 when the U.S. Supreme Court decided on Roe v. Wade. The recent overturn of Roe complicates that history, Moeller said.

“If there was a right to abortion in the Idaho Constitution, was it always there or did it arise because of the Roe decision?” Moeller asked.

Moeller and Justice Colleen D. Zahn also questioned whether fact-finding will be a necessary part of deciding the cases. Typically those procedures fall to lower courts. The justices said questions about medical definitions, procedures and standards of care could be key in debating Idaho’s laws.

“Don’t those things cry out for medical testimony?” Moeller said in reference to arguments on fetal viability and heartbeats.

Deputy Attorney General Megan Larrondo asked the court to allow the state abortion ban to take effect and lift an existing stay on the law that allows families to sue physicians who perform abortions.

Larrondo disagreed with Schoenfeld’s stance that the Idaho Constitution would protect abortion.

“There is no way the drafters of the Idaho Constitution believed they were enshrining something that was a criminal act when they were drafting that document,” Larrondo said.

Larrondo urged the justices to look to the U.S. Supreme Court’s tactics when it decided Dobbs v. Jackson Women’s Health Organization — the case that led to the overturn of Roe and Casey. In that case, Larrondo said, the justices considered what the understanding of abortion was when the U.S. Constitution was established.

She said the court should be able to decide whether the laws in question are fundamentally unconstitutional without testimony from medical experts. Medical providers will have authority to make “good faith” decisions on whether an abortion is necessary to prevent a pregnant woman’s death, Larrondo said.

Monte Neil Stewart, a lawyer from Las Vegas, spoke on behalf of the Idaho Legislature, which petitioned to intervene in the abortion ban and civil lawsuit cases.

Stewart told the justices the Legislature’s “paramount interest” is in removing the existing stay on the family lawsuit law.

“Because of that stay, pre-born children are being killed in Idaho,” Stewart said.

Justice Robyn Brady called the state’s abortion statutes “a bit of a maze.” She told Stewart she worried about how the civil enforcement section would apply if the total abortion ban takes effect. The ban would supersede part of the civil enforcement law, and would raise several questions on how both laws would interact.

“When the Aug. 25 (deadline arrives), I don’t know how to read that superseding language,” Brady said.

It’s not clear when the Supreme Court will issue its decision on the procedural issues. All parties agreed that they believe the two cases should be consolidated and that the Supreme Court should retain its jurisdiction to hear the cases.

Planned Parenthood has also filed a lawsuit on a third abortion law that bans abortions after the detection of a so-called fetal heartbeat, which medical experts said is more accurately described as electrical activity. The Supreme Court did not respond to a request from Planned Parenthood to include the third case in Wednesday’s hearing prior to the meeting.

Still, Brady acknowledged the third case, which is expected to take effect Aug. 19 — meaning it would be law for just under a week until the total ban kicks in.

“Doesn’t it make sense to consolidate all (three)?” Brady asked.

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