Idaho Supreme Court rules that abortion restrictions can take effect amid legal challenges

Idaho’s strict abortion restrictions will be allowed to take effect while legal challenges over the laws play out in court, the Idaho Supreme Court ruled on Friday.

A doctor and a regional Planned Parenthood affiliate sued the state earlier this year over three anti-abortion laws, all of which were designed to take effect this year now that the U.S. Supreme Court has overturned Roe v. Wade.

Under the ruling, a near-total criminalizing of all abortions will take effect on Aug. 25. The law will still allow doctors to defend themselves at trial by claiming the abortion was done to save the pregnant person’s life. 

Another law is also going into effect that allows potential relatives of an embryo or fetus to sue abortion providers for up to $20,000 within four years of an abortion. Rapists cannot sue under the law, but a rapist’s family members would be able to sue.

Planned Parenthood has also sued over a third strict ban criminalizing abortions done after six weeks of gestation except for in cases where it was needed to save a pregnant person’s life or done because of rape or incest. That law was set to take effect Aug. 19.

Dr. Caitlin Gustafson and Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky filed three lawsuits over each of the laws. The Idaho Supreme Court consolidated those cases into one as part of Friday’s ruling.

Planned Parenthood and the doctor failed to show that allowing enforcement of the laws would cause “irreparable harm,” the Idaho Supreme Court found. The high court said the plaintiffs also didn’t have evidence that they had a “clear right” to a remedy, or that they were likely to win on the merits of the case.

“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,” the court wrote.

The complexity of the arguments are likely to break new legal ground in the state, the high court found. The majority of justices said that meant the issues shouldn’t be decided until the case plays out in full – a process that can take months or longer.

“In short, given the legal history of 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,” the court wrote.

During oral arguments in the case last week, an attorney for Planned Parenthood and Gustafson told the high court that the abortion bans’ exceptions for saving a patient’s life are so vague that they are impossible to follow.

“That language gives no indication of how imminent, or substantial, the risk of death must be in order for a provider to feel confident” performing the abortion, said Alan Schoenfeld. “Suppose a patient with pulmonary hypertension has a 30 to 50% risk of dying … is that enough?”

But attorneys representing the state of Idaho and the Legislature told the court that abortion has historically been outlawed in Idaho since statehood.

This ruling also comes after the U.S. Department of Justice last week filed its own lawsuit against the state of Idaho over its abortion ban. Attorney General Merrick Garland said the ban violates the Constitution, is preempted by federal law, and is in conflict with the Emergency Medical Treatment and Labor Act (EMTALA).

“In the days since the Dobbs decision, there have been widespread reports of delays and denials of treatment to pregnant women experiencing medical emergencies,” Garland said in an Aug. 2 news conference. “Today, the Justice Department’s message is clear: It does not matter what state a hospital subject to EMTALA operates in. If a patient comes to the emergency room with a medical emergency jeopardizing the patients’ life or health, the hospital must provide the treatment necessary to stabilize that patient. This includes abortion when that is the necessary treatment.”