Attorneys debate abortion rights, state’s new laws in front of Idaho Supreme Court

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An attorney for Planned Parenthood on Thursday argued that the Idaho Constitution grants citizens the right to privacy, which should include the right to end a pregnancy.

The Idaho Supreme Court heard arguments in three cases challenging Idaho’s abortion restrictions. Planned Parenthood, on behalf of itself and Idaho Dr. Caitlin Gustafson, asked the court to strike down Idaho laws that ban abortion, criminalize abortion after a “fetal heartbeat” is detected and allow certain family members of a fetus to sue an abortion provider.

Justices on Thursday questioned whether the framers of the state constitution intended for privacy rights to include abortion — the state historically has prohibited the procedure — and whether a fundamental right is precluded from regulation by the state.

An attorney for Planned Parenthood argued that the constitutional right to liberty implicitly guarantees citizens the right to privacy, including within familial matters, such as abortion. Justices on Thursday grilled attorneys on both sides, asking questions that hinted at what they’ll consider as they deliberate whether abortion is protected by the Idaho Constitution.

Justice Gregory Moeller questioned whether the framers of the state constitution intended for privacy rights to include abortion. And Justice Colleen Zahn asked whether establishing abortion as a fundamental right would preclude the state from regulating it.

Tradition doesn’t dictate whether the right is implicit, said Planned Parenthood’s attorney, Alan Schoenfeld. He argued that abortion regulations should be subject to strict scrutiny, a constitutional test which holds the state must have a compelling interest to abridge a constitutional right and any regulation must be narrowly tailored to achieve that interest.

“There’s nothing narrowly tailored” about an outright abortion ban, Schoenfeld said.

On Aug. 12, the Idaho Supreme Court allowed Idaho’s abortion restrictions to take effect while the lawsuits moved forward. The court previously denied requests by Planned Parenthood’s attorneys to send the abortion ban case to a lower court and consolidated the lawsuits into a single case, which it considered Thursday.

The ban took effect Aug. 25 and has exceptions when the mother’s life is in danger, or in cases of rape or incest — as long as the crime is reported to authorities. 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 ruling effectively returned to states the right to govern the procedure.

After the ban took effect, health centers in neighboring states where the procedure remains legal have seen an influx of patients, according to Planned Parenthood Alliance Advocates, a lobbying group.

Characterizing abortion rights key to arguments

Attorneys for the state argued that no constitutional right to abortion exists and that the state has an interest in protecting the unborn.

There is no evidence that the framers of the Idaho Constitution “intended to protect as a fundamental right the right to have an abortion,” Deputy Attorney General Megan Larrondo said. “This is a battle that’s properly waged at the ballot box.”

Justice Colleen Zahn questioned whether the state is following through on protecting children in all circumstances. She referred to the Idaho Legislature’s history of protecting faith healing groups, whose religious beliefs compel them to not seek health care for their children, even if death is imminent.

“I’m not sure that the state is consistently applying that interest,” Zahn said.

Monte Stewart, an attorney representing the Idaho Legislature, urged the justices not to assume the role of lawmakers by “legislating” from the bench the parameters around abortion rights. Stewart, a Las Vegas attorney, argued that Planned Parenthood is asking the court to uphold a specific right, not a broader right to liberty protected by the Idaho Constitution.

They’re asking that a woman have a right, “unhindered by state action,” to abort her baby, Stewart said.

Justice Robyn Brody appeared to agree. The case comes down to how the right to bodily autonomy is characterized, Brody said, and every time the court interprets the state constitution it considers Idaho history and its laws.

“If you divorce the conversation about a fundamental right from our history, from actually looking at what the state has done from the beginning, I think we do run the danger of this court … making decisions based on our own personal policy preferences rather than the law,” she said.

Rights to liberty, happiness and safety have been articulated by the court in different ways as the scope of those rights has changed over time, Schoenfeld replied. The court today should reach the “logical conclusion” that the right to an abortion is part of all the other rights the court has recognized.

“What we’re asking the court to do today is to locate this particular right in a storied tradition of this court protecting the rights of Idahoans,” he said.

The court recessed while it deliberates and will release a decision at a later date.