On the same day that the Supreme Court of South Carolina voted by a 3-2 margin to recognize a state right to abortion, the Supreme Court of Idaho issued a contrasting 3-2 opinion declaring the state constitution of Idaho does not include the right to kill children before birth.
The brief summary included in the opinion of the court shows very similar reasoning to the recent opinion of the US Supreme Court in Dobbs v Jackson. The majority opinion in Idaho holds that neither the text nor historical or traditional interpretations of the Idaho constitution recognize abortion as a fundamental right, but quite the opposite, abortion has been treated as a crime by Idaho state law. A very important difference in the Idaho opinion, is that unlike the South Carolina case, the Idaho case dealt with three laws, not just the heartbeat law. In Idaho the court reviewed the state’s total abortion ban from 1863, the 2020 six-week/heartbeat ban, and a 2021 amendment to the heartbeat law which included expanded civil liability.
Summary of the Idaho opinion
The Idaho Constitution does not contain an explicit right to abortion. Nevertheless, Petitioners argue that certain provisions implicitly enshrine abortion as a right entitled to heightened protection from the legislature’s broad power to regulate conduct. In other words, they contend abortion is a “fundamental” right. If Petitioners are correct, this would place abortion alongside other “fundamental” rights that are expressly granted in the Idaho Constitution, such as: the right to vote, the power of the people to propose laws and enact the same at the polls independent of the legislature (i.e., the voter initiative), and the power of the people to approve or reject at the polls any act or measure passed by the legislature (i.e., the referendum). For the reasons discussed below, we cannot read a fundamental right to abortion into the text of the Idaho Constitution. Since Idaho attained statehood in 1890, this Court has repeatedly and steadfastly interpreted the Idaho Constitution based on the plain and ordinary meaning of its text, as intended by those who framed and adopted the provision at issue. That is our duty as the judicial branch: to sustain the rule of law—not to promote our personal policy preferences. If we were to jettison that disciplined approach, even in the face of a uniquely emotional and politically divisive policy issue, the Idaho Constitution would no longer be the voice of the people of Idaho— it would be effectively replaced by the voice of a select few sitting on this Court. The Inalienable Rights Clause in Article I, section 1 of the Idaho Constitution, which lists the rights to life, liberty, and property, provides the textual basis for the recognition of implicit fundamental rights. Indeed, Article I, section 21, while not purporting to be a repository of implicit rights, provides that the listing of rights in the Idaho Constitution “shall not be construed to impair or deny other rights retained by the people.” The Inalienable Rights Clause was framed at Idaho’s constitutional convention in 1889 and ratified by the people of Idaho later that same year. Thus, for us to read a fundamental right into the Idaho Constitution, we must examine whether the alleged right is so “deeply rooted” in the traditions and history of Idaho at the time of statehood that we can fairly conclude that the framers and adopters of the Inalienable Rights Clause intended to implicitly protect that right. When we apply that test to this dispute, there simply is no support for a conclusion that a right to abortion was “deeply rooted” at the time the Inalienable Rights Clause was adopted. Nothing in the territorial laws of Idaho, the record of the 1889 constitutional convention, the surrounding common law and statutes, the surrounding publications of the times, or Idaho’s medical regulations at that time show abortion was viewed as a right entitled to heightened protection from the legislature’s regulatory power. To the contrary, the relevant history and traditions of Idaho show abortion was viewed as an immoral act and treated as a crime. Thus, we cannot conclude the framers and adopters of the Inalienable Rights Clause intended to implicitly protect abortion as a fundamental right. Importantly, nothing about this decision prevents the voters of Idaho from answering the deeply moral and political question of abortion at the polls. For example, if the people of Idaho are dissatisfied with these new laws, they can elect new legislators. Additionally, the Idaho Constitution is not immutable. Indeed, a review of the session laws of this State reveals that the people of Idaho have amended the Idaho Constitution 135 times since 1889—and many of these amendments span the political spectrum. In fact, voters rejected a proposal in 1970 which would have added an explicit “right of privacy” in Article I, section 1 of the Idaho Constitution in a proposed re-write of the Constitution. 1970 Idaho Sess. Laws 739, 740. Thus, we emphasize that all we are deciding today is that the Idaho Constitution, as it currently stands, does not include a fundamental right to abortion. This conclusion answers the central question Petitioners have raised in their petitions. Additionally, as explained below, we conclude that the Total Abortion Ban, 6-Week Ban, and Civil Liability Law each pass the familiar test for determining the constitutionality of most legislation: “rational-basis” review. Under that form of review, each of these laws is constitutional because it is rationally related to the government’s legitimate interest in protecting prenatal fetal life at all stages of development, and in protecting the health and safety of the mother. Importantly, the questions of whether a law passes constitutional muster—and whether a law is good policy—are distinct. In the challenges Petitioners bring today, we can only judge these laws—as demanded by the constitutional principle of separation of powers—based on their constitutionality, not on whether they are wise policy.
Key Differences with South Carolina’s Case
The Idaho ruling rejected a constitutional right to privacy that includes abortion by using an originalist textualist approach. It also upheld Idaho’s complete abortion ban not just the heartbeat law.
In the South Carolina case, a concurrence (in favor of abortion) from Justice Few, maintained that South Carolina legislators had violated their own pro-life principles – that human life begins at conception – by only banning abortion after a heartbeat was detectable. The judge asserted that had they passed a complete abortion ban, as had been proposed in recent legislation, they they could have made the case that the interest in “human life” would trump all other rights. By not banning abortion completely, opined Justice Few, South Carolina legislators had shown that the right to life was not fundamental and could therefore be trumped by the right to privacy.
This year, the House of Representatives passed a near-total ban on abortion. Like its predecessors, H. 5399—had it passed the Senate—would have been based on the finding, "It is undisputed that the life of every human being begins at conception." Had H. 5399 become law, the State may have had a good argument there is no countervailing interest that could render unreasonable the State's use of a total ban on abortion to protect human life from the point of conception. In other words, if the State were to pass a total ban on abortion—despite a complete invasion of a pregnant woman's right to privacy—the privacy invasion might be reasonable under article I, section 10, because "human life" has no countervailing interest; human life simply must be preserved. But the General Assembly failed to pass the personhood bills, and this year the Senate refused to pass H. 5399. Thus, despite consistent efforts, there is no legislative policy determination that human life—"personhood"—begins at conception, and there is no such State interest that justifies enacting the six-week bill.
The argument made by Justice few is remarkably similar to the argument made by Justice Blackmun in Footnote 54 to his opinion in Roe v. Wade (1973):
When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment's command? There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out, n 49, supra, that, in Texas, the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?
However, Justice Few seems to be ignoring the fact that until the 1970’s, when the South Carolina repealed the state’s comprehensive abortion ban – in order to reconcile state law with Roe v. Wade – South Carolina had banned abortion for over 100 years in perfect harmony and with no apparent legal conflict with the constitutional right to privacy. Even after the pre-Roe abortion ban had been repealed, other laws that protect the child in the womb were passed by the South Carolina legislature and catalogued under the section of the criminal code dealing with “Crimes Against the Person.” An example of this is the 2006 Unborn Victims of Violence Act, which read:
SECTION 16-3-1083. Death or injury of child in utero due to commission of violent crime. (A)(1) A person who commits a violent crime, as defined in Section 16-1-60, that causes the death of, or bodily injury to, a child who is in utero at the time that the violent crime was committed, is guilty of a separate offense under this section.
The inconsistency pointed out by South Carolina Justice Few in his concurrence is not a problem for the majority of the court in Idaho, which simply denied the claim that abortion could be read into the constitution, considering it an affront to the rule of law and the canons of constitutional interpretation.
While the South Carolina case directly attempts to dehumanize preborn children by denying them the recognition of their personhood, the Idaho case does not directly uphold the personhood of the preborn either. The Idaho Supreme Court explicitly left open the possibility for the legislature to pass new laws potentially legalizing abortion by limiting the opinion to a finding that abortion is not included in the constitution, instead of a finding that the right to life, which is in the constitution, precludes abortion.
Until Idaho recognizes the personhood of the preborn explicitly, it will not out be out of the reach of the powerful legal claws of the abortion industry.
Both cases, in South Carolina and Idaho, involved challenges from abortion giant Planned Parenthood.