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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.
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Good but no excuse for Idaho having 2 pro-abortion judges on its highest court.
As long as Roe was law, they could remain stealthed. It was only Roe being struck down that forced them to break cover.
They're all toast sooner or later, they need to pass majority votes in the over 2/3 Republican General Assembly to retain their positions, over the next 2-6 years.
Scratch that reference to the general assembly, in Idaho they go before the voters.
OMG, they let voters decide? That's how Hitler took power.
The problem isn’t that they’re pro-abortion. The problem is that they’re dishonest. The Iowa constitution says nothing about abortion. To claim it does is to claim a lie, to substitute your (the judge’s) preferences for those of the people who wrote the constitution and voted to ratify it.
You know, while I not a fan of wifebeating, I'd love to see someone cite this decision and claim that privacy precludes prosecuting him for it. For all the cited reasons.
A great day in Idaho for Libertarians For Statist Womb Management and Libertarians For Big-Government Micromanagement Of Ladyparts Clinics.
STATES RANKED BY EDUCATIONAL ATTAINMENT
(includes territories; 51 jurisdictions ranked)
BACHELOR’s DEGREE
Idaho 38
ADVANCED DEGREE
Idaho 41
HALF-EDUCATED HAYSEEDS
Idaho 10
REPUBLICAN REGISTRATION
Idaho 5
(Idaho: Most Of Us Is So Every Bit As Smart As A Potato, So Screw Off, Lib Elitists!)
for a "Reverend" you're not very "Reverend-y"
Spent a weekend in Boise (should call the part across the river "Girls-ie") ID one month (get it?) "Cross Country" flight in an FA-18,
Pilot was from there, parked right next to the "Wild Weasel" Guard Squadron. Don't remember much of the weekend, which was what Cross Country's were for.
and who can hate on a College that calls it's teams the "Vandals"???
Frank "Visigoths call Heads, it's Tails, what you gonna do Vandals?? Vandals will rape and pillage, Vandals will rape and pillage, which goal you wanna defend Visigoths??"
parked right next to the “Wild Weasel” Guard Squadron.
If this was prior to 1996, they were the real thing and if not, maybe the guard unit got to keep the discontinued name.
"Wild Weasel" was a tactic in Vietnam of intentionally letting a SAM site target you so that your missiles could follow their targeting radar back and destroy it. Exceptionally dangerous.
But as to the larger issue, I think we overvalue education in this country.
Good thing for the Democrats, worshipping Moloch is probably protected, they just can't do child sacrifices anymore.
One fictional Middle Eastern deity looks like another to me.
One has you sacrifice your children for him, the other sacrifices his son for you.
If either of them actually existed you might have a point, although given how many sons have died in pointless religious wars over the centuries, I'm not sure your point is entirely valid.
Hey, can I borrow your time machine you used to go back to 30AD to prove Hey-Zeuss didn't exist? I want to go back to 4000BC and prove Dinosaurs chased Cavemen, like in the Flintstones, I've got as much evidence for my theory as you do for yours,
i.e. "None"
Frank
The burden of proof is on the person seeking to show that someone or something actually did exist or actually did happen. Assuming you have the brainpower to actually think something through, it's obvious why that's the case:
BELIEVER: I believe Elvis is having an affair with the pope.
UNBELIEVER: You got any evidence for that?
BELIEVER: Nope, but neither do you have evidence that it's not true, so I guess we're at a draw.
No, Frank, that's not how it works.
For gullible, stupid, superstitious people, that is precisely how it works.
Ostensible adults for whom "just because" seems a legitimate and persuasive argument.
Thank goodness those losers are the modern mainstream's opposition in the culture war, and I am grateful my children and grandchildren get to compete economically with such credulous, ignorant saps.
So I guess Bill Clinton, Barry Hussein, and Senescent Joe are gullible, stupid, superstitious people, because none of them ever missed a chance to say "God Bless Amurica" and how come everytime some black criminal gets shot by the Cops, Politicians always call in the "Afro-Amurican Clergy"
And I'm getting the idea you're not really a Reverend, Jerry.
Frank
To some degree, yes.
The good news is that in their circumstances the superstition does not appear to generate racism, misogyny, immigrant-hating, gay-bashing, antisemitism, Islamophobia, and other forms of bigotry.
I blame their failure to be right-wingers.
You trying to get me as a "Character Witness" for the Parole Board Jerry??
Because you just admitted the previous 2 and Current DemoKKKratic POTUS's are "Gullible, Stupid, Superstitious People"
OK, you qualified it as "to some degree"(You Lawyers!)
Yes, Your Honor, Jerry Sandusky is "to some degree" a Rapist.
And may need to check your Namenda supplier, because just from my Substantia Nigra, I can remember 1: Bill Clinton making a special trip back to Ark-Kansas, to sign the Execution Warrant for a Retarded Black Man, coincidentally, while he was running for the DemoKKKrat nomination, 2: Barry Hussein was the only candidate in the 2008 erection who opposed Same-Sex Marriage, and the last POTUS who didn't support it (Even "45" saw the light), 3: Lets see, Senescent J threatened an Afro Amurican "Yute" with a Bicycle Chain, Supported the 1994 "Crime Bill", and was against Bussing for School Intergration, you know, didn't want "Jungle Schools" in his "Slave State" of Delaware,
You know, "Reverend" you're really not that smart,
of course you've been in "the Can" for awhile
Frank
If guys like me are not that smart, how do we continue to kick the everlasting shit out of clingers like you, the Volokh Conspirators, and other Republicans and conservatives in the culture war?
Elvis had an affair with the Pope??
Well the "King" was in Germany at the same time Pope Benedict was being a Priest in Germany, so could have happened, probably a Jerry Sandusky kind of thing.
And I'll use your argument next time someone talks about the "Climate Change" bullshit,
Frank "Me, Blow"
Worship of America's Moloch, including ritual child sacrifice, is protected by the Second Amendment. https://www.nybooks.com/online/2012/12/15/our-moloch/
Even in Idaho, ideology rules.
While I offer no research, I predict that the dissenters have a good case that the Idaho constitution has been read more broadly when the ideological case went the other way.
The modern culture was eventually will resolve all of this . . . much like the Rapture, if the Rapture were not a silly fairy tale for gullible children.
I prefer Blondie's version
Surely there are "penumbras and emanations" in which they could find the right to an abortion or any new "right"?
Right. If you try hard enough, you can "interpret" black to be white and vice versa.
According to the dissent, I have a state constitutional right to be happy. That clears things up.
Unlike Florida, which passed a standalone right to privacy amendment well after Roe was decided and after the term had come to encompass abortion in legal use, and unlike South Carolina, which at least has the word “privacy” in its constitution, the general phrases in the Idaho Constitution don’t come anywhere near to describing anything connected to abortion.
One could just as easily conclude they provide an absolute right to contract including racial discrimination and requiring striking down minimum wage laws. Or any other policy preference one has.
It appears that a pregnant 15 year old in Idaho has the inalienable right to choose her hairstyle, but no right to choose whether to carry her pregnancy to term, even where doing so would threaten her life, health or safety.
As a preacher from my youth was fond of saying, that doesn't even make good nonsense.
If there is anything the depleted human residue that remains in Idaho is good at, it's nonsense. Childish, silly fairy tales in particular.
Well, it might serve as a warning to other 15-year-olds -- it did in the past...
Well, it might serve as a warning to other 15-year-olds -- it did in the past...
A ring on before panties come off -- many generations of women did quite well with that rule...
Today is the second anniversary of the movement conservative Republicans' insurrection.
Does a single Volokh Conspirator have the courage, finally, to say anything about this white, male, right-wing blog's shameful endorsement of (former) Prof. John Eastman, who has been revealed to be a disgusting, un-American insurrectionist? Or the shameful point that this blog attracts such a remarkable concentration of disaffected, un-American right-wing assholes who support the insurrectionists?
Anyone? Is two years enough time for at least one of you to develop a bit of character that might overcome your paltry partisanship?
Carry on, clingers. So far as your betters permit, and then only until your replacement.
Well like they say, one Sex Offender's "Insurrection" is a Non-Sex-Offender's (Oh, I Offend peoples all the time, just not sexually(dammit)) "Revolution"
And is there any better evidence of the need for umm, a (Peaceful! Lawful!) "Revolution" than the current Clown show in D.C. ? and I don't mean the 410 voting for hard to believe, but the worst McCarthy in Senate History, or Hakeem "the Bad Dream" Jefferson, that's right, there's about 10 members of Congress I'd buy a drink for,
Again with the "Betters" routine, is that a Prison thang Jerry?? I mean I don't consider myself "Better" than anyone, "Handsomer"? maybe, "Smarter" probably, "Richer"? hey, if you're really rich you don't have to talk about it, "Never diddled little boys" OK maybe I am "better" than you on that one
Frank
As to January 6th, I've seen rowdier frat parties and if Kirkland ever came out of his cave, he would have as well....
A man with a spear versus a military equipped with thermonuclear weapons. Whom do you think is going to win if this gets violent?
The appropriate punishment for all involved would have been a dozen weekends out picking up litter along the Beltway.
The Conspirators' silence demonstrates they are are un-American cowards.
Its all in framing. If you focus on abortion as ‘right to privacy’ and that specific language is missing in the constitution of Idaho… easy call. What if it were framed ‘as the right of citizens of Idaho to make their own medical decisions’ or a right of ‘bodily autonomy?’ While those words may be construed in an abstract sense under a ‘right of privacy’ in the very general sense... if you are explicit – why can’t the constitution be applied to the more specific factual scenario which seeking and having an abortion actually is? Does privacy usually entail employing other people to do a job and paying them? Does the rather broad language in the constitution (and non-enumerated rights of people in the other part of the constitution) not follow depending on how the question is framed?
Privacy sweeps all this up because it basically consists of the right to have everybody else mind their own business. If that right is explicit then the discussion becomes at what point does it legitimately also become somebody else's business and there is a need to balance competing rights. But if privacy is not an explicit right that doesn't make it an "easy call", because the fact that a right is implicit doesn't make it any less valid or important a right.
Framing didn't matter here. The majority of the Idaho court rejected the plaintiffs claims that rights to “privacy,” “bodily autonomy,” and “intimate familial decisions,” (if they exist at all) embrace abortion rights. The right to choose one's hairstyle, however, is an inalienable constitutional right, albeit one not referenced in the constitutional text.
Even Roe said the government had an interest is preserving potential human life, not so much of a government interest in hair styles.
Lets not try to be so glib as to try to say dead nerveless hair is as consequential as a live human embryo.
I'm am moderately pro-choice myself just because I want the government making as few decisions as possible in our lives, but comparing babies to hair is ridiculous.
Thanks guys for the responses; kazinski.. i don't think its an apples to apples comparison of dead human hair and a 'baby.' The point or discussion is focusing on the right to privacy in the abstract and more to my point...framing. Not Guilty above corrected me on why framing didn't matter in this particular case (because of how the arguments were made/presented). I simply didn't have time to read the various pleadings and only had the story from what Eugene shared from the ruling.
I didn't like Alito's opinion overturning Roe v Wade...I am not a huge fan of originalism or textualism although I can certainly see the intuitive appeal. But this whole going back in time shit to read long dead minds and determine intent is such a farce... do any of these fuckers ever stop to think that woman's rights "back then" basically didn't exist and determining their rights NOW is a more nuanced task then looking at what the law intended at some arbitrary point in the 19th century? Its a stupid justification to take away people's rights in the present. Jesus christ...how bout the next time someone is charged with domestic battery they challenge it because at the time of the state founding woman were property and you could beat them so long as you were reasonable about it and she learned a good lesson.
"I don’t think Idaho justices should be looking to Iowa’s constitution on this question."
See, this is why I say that the right and the left's notions of what makes a good judge are almost disjoint at this point. Where the hell else SHOULD a judge, charged with making legal decisions, look?
It's often been said that “The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics”. Well, it didn't enact Rawls A Theory of Justice, either.
Once judges start reaching outside the law to make these sorts of decisions, they're usurping the role of the elected branches.
I don’t think they should either, but have you checked (1) Idaho’s positions at the rankings of states by educational attainment or (2) the schools at which Idaho justices studied?
The Idaho constitution?
Keep up the great work, Mr. Bellmore. I have no doubt you will be the one to find former Pres. Obama's Kenyan Muslim Communist birth certificate.
Brett, you yourself have loads of...idiosyncratic interpretations of the Constitution.
I know you think you're right, but it's pretty ridiculous to not allow that others might have different good faith interpretations, even if you disagree.
Because most everyone disagrees with you.
Have you checked the statistics and positions for Americans of African descent? They're your most reliable voting bloc.
Suppose the Idaho legislature by statute mandated surgical sterilization of feeble minded Idahoans. That would pass muster under the U.S. constitution under Buck v. Bell, 274 U.S. 200 (1927). Since the Idaho constitution does not mention a right to procreation, would a majority of Idaho’s Supreme Court be copacetic with such a statute?
What if the legislature enacted a one child policy, mandating abortion (on pain of imprisonment) when a woman who has previously borne a child becomes pregnant? Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022), would call for rational basis review of such a measure. So would the instant decision of the Idaho Supreme Court.
The Volokh Conspiracy thanks you for that comment, gallinalg85. The proprietor can only publish a vile racial slur for his bigoted Republican fans every three weeks or so, so the Conspirators count on guys like you to do the work in the meantime.
Seems rather perverse to try to pin on the Idaho legislature and Supreme court something they didn't do, but a progressive era US Supreme Court did.
Its actually a pretty topical decision though. Here is Holmes writing in 1927:
"The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes."
I guess, but how did you like his singing????
Oooh, what a burn, you said "Soldier Boy's was the best"
what? his Cock??!?!?!?
Like the "Reverend" Sandusky, you're not as smart as you think you are,
Frank
"3 Generations of Imbeciles"???
Hoo Boy, if only OWH(when did we start referring to Surpremes by their initials?? Must be fairly recent, as I don't ever remember "WHR looked ridiculous in his Gilbert & Sullivan inspired striped Robe")
could see today's "Generations" more like 8 generations, and calling them "Imbeciles" would only be an insult to the Imbeciles,
Frank "Sterilized, Voluntarily, (hate's condominums)"