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Federal Court Recognizes Constitutional Right to Abortion to Prevent Serious Harm to Woman's Health
The court also draws an interesting analogy to self-defense rights.
From a decision Monday by Judge Lynn Winmill (D. Idaho) in Seyb v. Members of Idaho Bd. of Medicine:
At issue [in this case] is not the general right to abortion—definitively rejected in Dobbs—but the right to self-preservation.
In Idaho, the Defense of Life Act makes abortion a felony except when necessary to save the life of the mother (unless her death would be due to self-harm) and for a small subset of rape and incest victims. The law does not contain an exception for pregnancies that will cause serious and permanent harm short of death. Essentially, pregnant women are required to sacrifice their health for the sake of the fetus—even if the fetus will, tragically, not survive past birth….
But the record before the Court provides significant evidence that {the right to a medically indicated abortion} is deeply rooted in our nation's history, bound up with traditional and fundamental principles such as self-defense and necessity. For centuries, a range of legal and medical authorities have recognized that abortion is not a crime when performed to protect a woman's health and safety….
[1.] The History-and-Tradition Test
The Due Process Clause protects certain unenumerated rights that are so fundamental that "neither liberty nor justice would exist if they were sacrificed." These substantive due process rights are essential but limited. First, the Due Process Clause protects only "those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty." Second, there must be "'a careful description' of the asserted fundamental liberty interest"—not merely an appeal to broad ideals and principles.
Accordingly, when considering an asserted substantive due process right, the inquiry hinges on "a careful analysis of the history of the right at issue." Without such constraint, the Fourteenth Amendment's guarantee of "liberty" becomes capacious—a blank slate onto which courts may impose a virtually unlimited range of policy preferences. Reliance on objective historical evidence ensures that judges do not "confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy." America's "history, legal traditions, and practices thus provide the crucial 'guideposts for responsible decisionmaking,' that direct and restrain our exposition of the Due Process Clause." …
[2.] Historical Evidence for an Abortion Health Exception
The asserted right to a medically indicated abortion does not arise in a vacuum as a free-standing manifestation of substantive due process. Rather, the right exists within a broader right to self-protection and self-preservation, which is fundamental to the American tradition of justice.
[i.] The Right to Self-Protection
Our legal tradition has always recognized that otherwise unlawful acts can become permissible when necessary to prevent harm to oneself or another. This principle manifests in the fundamental right to self-protection, which traces back to the earliest days of the common law.
The right to self-defense is so well established that there is no need to linger on it. Blackstone observed that English law pardoned even homicide if done to preserve either life or limb, and St. George Tucker referred to self-defense as "the first law of nature." Summing up this tradition, the Supreme Court described self-defense as "a basic right, recognized by many legal systems from ancient times to the present."
Self-defense is traditionally invoked against interpersonal threats—when necessary to protect "against the use of unlawful force by such other person." The related doctrine of necessity applies to broader forms of danger—essentially, when a person breaks the law because "they were faced with a choice of evils and chose the lesser evil." Like self-defense, necessity has a long pedigree, discussed in English common law and recognized by numerous American courts since the Founding. {See, e.g., Reninger v. Fagossa (1551) ("A man may break the words of the law, and yet not break the law itself… where the words of them are broken to avoid greater inconvenience, or through necessity, or by compulsion."); The William Grey (C.C.C.D. N.Y. 1810); 24 F. Cas. 873 (C.C.D. Mass. 1834). For more on this history, see Edward B. Arnolds & Norman F. Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J. Crim. L. & Criminology 289, 291-93 (1974).} This deep tradition suggests that the right to self-protection is properly understood to encompass not just interpersonal violence, but also unintentional—and sometimes tragic—forms of peril to the self.
This fundamental right to self-protection provides a compelling basis for a due process right to a medically indicated abortion. But like any right, the right to self-protection is not absolute. The Court must next consider the scope of the right—specifically, whether evidence suggests that it has historically encompassed the right to medically indicated abortions.
[ii.] Medically Indicated Abortion as Self-Preservation
In substantive due process cases, the asserted right must be defined with a high degree of specificity. Because defining rights in general terms improperly removes issues from the process of democratic deliberation, courts must assess historical support for the particular right asserted—not appealing but vague principles like dignity, autonomy, and freedom. Here, the issue at hand is whether the right to self-protection has traditionally encompassed the right of a pregnant woman to terminate a pregnancy that threatens her health….
Turning to the factual record, the Court will begin with the weighty evidence of a historical right to an abortion when necessary to save the life of a pregnant woman. At oral argument, Defendants asserted that Idaho may ban even these abortions—in other words, that the Constitution leaves the states free to require a woman to sacrifice her life for the sake of her potential child. Although this is not the question before the Court, it is a helpful baseline for considering the applicability of the right to self-protection in the context of abortion. It also bears on Dr. Seyb's equal protection claim, which the Court will discuss below.
The historical record substantially supports the right to abortion when needed to save the mother's life. Starting with the common law, although early authorities did not explicitly discuss a life-of-the-mother exception, later English caselaw suggests that the principles of self-defense and necessity were understood to justify abortion in such circumstances. Closer to home, of the 28 states that banned abortion in 1868, 19 included an express life exception; two had an express safety exception; and six applied only to abortions done "feloniously," "unlawfully," or "without lawful justification"—language understood to create, at minimum, a life exception. The single remaining state, Nebraska, adopted a life exception when it codified its laws in 1873. Every other criminal abortion law adopted after 1868 likewise contained an express life exception. See Dobbs (Kavanaugh, J., concurring) ("Abortion statutes traditionally and currently provide for an exception when an abortion is necessary to protect the life of the mother.").
This history shows a narrow but fundamental limit on states' authority to ban abortions. The record, when viewed in the light most favorable to Dr. Seyb, further contains evidence of a deeply rooted right to abortion when necessary to preserve a woman's health. Though only Maryland and Illinois expressly allowed such abortions in 1868, the six states that criminalized abortions done "unlawfully" arguably also recognized broad health exceptions. There is further historical evidence that, in practice, the life-of-the-mother exception extended to pregnancies that would cause the woman permanent and serious harm, and this Court has not found a single case where a state prosecuted an abortion performed to preserve a woman's health. Even Roe and Casey distinguished between elective and medically indicated abortions, with states free to prohibit the former but not the latter after viability.
In this vein, several states that historically recognized only life exceptions have recently held that the right to a medically indicated abortion is nonetheless deeply embedded in their history and tradition. The Supreme Court of Indiana held that the right to self-protection, implicit in the state constitution, prevented the legislature from "prohibit[ing] an abortion procedure that is necessary to protect a woman's life or to protect her from a serious health risk." The North Dakota Supreme Court similarly explained that the state's "history and traditions … establish that the right of a woman to receive an abortion to preserve her life or health was implicit in North Dakota's concept of ordered liberty before, during, and at the time of statehood."
Going further back in history, common law sources also provide evidence, albeit indirectly, of a right to a medically indicated abortion. Blackstone condemned post-quickening abortion as "a very heinous misdemeanor"—though not homicide—immediately before explaining that the law of self-defense pardons even homicide if done "to save either life or member." Hale distinguished between abortions performed on a woman "to destroy the child within her" and those done "to cure her of a disease." Consistent with this tradition, English courts interpreted the country's 1861 abortion ban to include an implicit exception for the health of the mother. In the landmark case Rex v. Bourne (1938), the court first observed that abortion was allowed "for the purpose only of preserving the life of the mother." But, the court explained, a "reasonable" interpretation of those words extended to serious health impairments—circumstances where "the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck."
More broadly, the right to self-defense through lethal force traditionally applies to threats of serious bodily harm in addition to death—both man's "life" and his "limbs," as Blackstone noted. In this sense, what Defendants are really seeking is a pregnancy exception to the right to self-protection. Normally, a person has the right to kill another person who means to do grave harm. See, e.g., Idaho Code § 19-202A ("No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting himself or his family by reasonable means necessary …."). In Idaho, however, pregnant women must endure all manner of injuries short of death to avoid compromising the potential life they carry. Perhaps our nation's history and traditions allow Idaho to compel this sacrifice, but Dr. Seyb has produced significant evidence to the contrary. Certainly, the record is mixed, and Defendants have cited sources indicating that states have long prohibited abortions even when medically necessary. To rule on this challenging due process question, the Court will need to carefully weigh nuanced historical evidence. And that is why the case must proceed to trial.
[C.] Equal Protection for Life-Threatening Mental Health Conditions
Finally, the Court considers Dr. Seyb's equal protection claim, which challenges Idaho's refusal to include death from self-harm in the life-of-the-mother exception. This issue turns on whether the Court finds that a fundamental right is at stake in the due process claim. Therefore, summary judgment is improper….
[H]eightened scrutiny [under the Equal Protection Clause] applies when a classification either "proceed[s] along suspect lines" or "involve[s] fundamental rights." Pregnant women at risk of death from self-harm are not a suspect class, as all parties acknowledge. If, however, there is a fundamental right to a life-saving abortion, Idaho's exclusion of self-harm impinges on that right. Strict scrutiny would thus apply, meaning that the law survives only if "suitably tailored to serve a compelling state interest."
While Defendants' proffered justifications—such as the existence of alternative treatments and the difficulty of verifying the threat of self-harm, which Defendants claim "can be professed by anyone"—likely pass muster under rational basis review, they do not necessarily satisfy strict scrutiny. It remains unclear whether these justifications constitute a compelling state interest, and even if they do, it is not clear whether the categorical self-harm exclusion is narrowly tailored to serve such interests—it applies even when psychiatric interventions have failed, when the risk of death has been clinically verified through standardized, evidence-based protocols, and when the patient appears in imminent danger. These are questions the Court cannot resolve at summary judgment. The equal protection claim must therefore proceed to trial.
As a closing note, it is true that abortion poses a profound moral question, and that such matters must generally be left to the states rather than the judiciary. But the Fourteenth Amendment exists to circumscribe what the state may force individuals to endure, and how far it may go when prioritizing some lives over others. Idaho could not make a mother undergo a bone marrow transplant to save her child. Can it require a pregnant woman to give up her ovaries or her kidneys in the hopes of saving a fetus? Answering that question will require the Court to weigh the evidence of our nation's history, traditions, and practices. For that reason, this case must go to trial.
I had written a bit on this general subject in my Medical Self-Defense article (pp. 1817-28), including on the analogy to ordinary lethal self-defense. As I note there, even Justice Rehnquist in his Roe v. Wade dissent recognized that if a "statute were to prohibit an abortion even where the mother's life is in jeopardy," the law would be unconstitutional, though he didn't specifically speak of serious threats to the mother's health.
