Idaho S. Ct. Holds Constitution Doesn't Protect Right to Abortion

From Justice Robyn Brody's majority opinion yesterday in Planned Parenthood Great Northwest v. State (joined by Justices Richard Bevan and Gregory Moeller):

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.

From Justice Colleen Zahn's dissent:

Petitioners point to sections 1, 17, and 21 in Article I as potential textual bases for an implicit fundamental right to abortion. Passing on the constitutionality of statutory enactments is a fundamental responsibility of the judiciary, and has been so since Marbury v. Madison (1803). When we are called on to perform this duty under the Idaho Constitution, "the primary object is to determine the intent of the framers." Thus, any implicit fundamental rights the framers intended to protect from that "broad field of police power" to "enact laws concerning the health, welfare and morals of the people[,]" must be based on the plain language of the Idaho Constitution. "Fundamental rights" in our state constitution are those that are either "expressed as a positive right" or "implicit in our State's concept of ordered liberty."

I agree that when interpreting Idaho's Constitution to determine whether a right was implicit in Idaho's concept of ordered liberty, we cannot ignore Idaho's history and tradition. It is impossible to determine the framers' intent and whether a right is implicit in Idaho's concept of ordered liberty without considering Idaho's history and traditions.

However, because we are interpreting our state Constitution, we are not bound to the same test that the United States Supreme Court applies to interpret the federal constitution. While history and tradition are important and often controlling considerations, they should not always be the sole consideration. This Court has repeatedly recognized that Idaho's Constitution was not "frozen in time."

Considering this history, and the inescapable reality that time brings developments that our founders could not have contemplated, we should look to Idaho's history and traditions to determine the framers' intent but not be locked into examining those rights only according to the circumstances in which they existed circa 1890. Rather, we must follow our precedent that Idaho's Constitution did not freeze rights as they existed in 1890. The deeply rooted test locks this Court into determining whether a constitutional right exists based on whether it was litigated or written about in 1890. There may well be rights that were not litigated or written about, but which the framers still intended to include within our constitution. There may also be rights that were written about in 1890, but the then-existing circumstances have since changed. The fact that a situation we confront today was not discussed circa 1890, should not prevent this Court from determining whether our Constitution speaks to that situation today. Setting Idaho's history and traditions as our guidepost when determining the framers' intent ensures we do not stray from the requirement that we interpret our constitution according to the framers' intent. Limiting our interpretation to conditions as they existed in 1890 runs the risk of reading rights out of our constitution, particularly the inalienable rights.

And from Justice John Stegner's dissent:

I concur in Justice Zahn's conclusion that the inalienable rights of a pregnant woman to life and safety render the right to abortion to protect those rights fundamental under the Idaho Constitution. However, I write separately because I view Idaho's constitution as providing broader fundamental rights to Idaho's women. I would go further and hold that Idaho women have a fundamental right to obtain an abortion because pregnancy—and whether that pregnancy may be terminated—has a profound effect on pregnant women's inalienable right to liberty, as well as their rights to life and safety.

The decision the majority hands down today is, in my view, simply wrong. Today's decision strips Idaho's women of their most basic rights, which in Idaho's constitution, in contrast with the federal constitution, explicitly include life, safety, liberty, and happiness. These rights are unequivocally protected by Article I, section 1 of the Idaho Constitution—or rather, those rights were protected by Idaho's constitution. The decision the majority has issued today effectively reads these rights out of Idaho's constitution. It nullifies the constitutional provision our forefathers saw fit to place first in our constitution, in a place of obvious primacy and importance. The men who drafted our constitution cannot have intended their chosen words to mean nothing, and yet, that is the meaning afforded them today. I cannot support an interpretation that renders Article I, section 1 a nullity. Instead, I would hold that Article I, section 1 of the Idaho Constitution protects the fundamental right of a woman in Idaho to terminate a pregnancy. Accordingly, I respectfully dissent.

In reviewing the constitutionality of the challenged statutes, this Court's duty is to interpret the Idaho Constitution such that the drafters' intent is brought to life. As with statutory interpretation, this begins with an analysis of the plain language of the constitution: "The fundamental object in construing constitutional provisions is to ascertain the intent of the drafters by reading the words as written, employing their natural and ordinary meaning, and construing them to fulfill the intent of the drafters."

Article I, section 1 of the Idaho Constitution protects Idahoans' inalienable rights. The language is simple and forthright: "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." Additionally, section 21 of Article I explicitly states that "[t]his enumeration of rights shall not be construed to impair or deny other rights retained by the people." Read together, it is clear that, by the plain language of sections 1 and 21, the drafters of the Idaho Constitution intended Article I, which protects the rights of Idahoans from intrusion by their government, to be read broadly. The drafters made abundantly clear that the rights they listed were not the only individual rights to be constitutionally protected. They explicitly adopted the Idaho Constitution to "secure" the "blessings" of "freedom" for Idahoans. Idaho Const. Preamble ("We, the people of the state of Idaho, grateful to Almighty God for our freedom, to secure its blessings and promote our common welfare do establish this Constitution."). While the Idaho Constitution venerates our freedom, today's decision makes that promise a hollow one.

The right to terminate a pregnancy, while not expressly listed in our constitution, implicates no fewer than four of the five rights that the drafters listed in Article I, section 1. Article I, section 1 expressly protects Idahoans' rights to life, liberty, safety, and happiness. All of these expressed rights are significantly impacted by issues surrounding a pregnant woman's health and freedom to choose her path forward. In my view, this provides more than ample support to conclude that the right to terminate a pregnancy is "implicit in Idaho's concept of ordered liberty" and is, therefore, a fundamental right protected by the Idaho Constitution.