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Idaho Supreme Court Justices point to conflicting language in abortion laws

| August 4, 2022 1:00 AM

A hearing at the Idaho Supreme Court regarding two of the state’s abortion laws seemed to create more questions than it answered, as justices highlighted confusion over criminal penalties and civil enforcement guidelines across three separate statutes.

The court is expected to issue a ruling in the coming days that will determine whether the laws will go into effect later this month and whether the cases will be consolidated or transferred to a lower court for further review.

The court paused implementation of the civil enforcement law in April and will decide whether to keep that pause in place, while also deciding if it should pause implementation of two abortion bans.

Planned Parenthood sued the state of Idaho in three separate cases: one regarding Idaho’s law to ban nearly all abortions that is scheduled to take effect Aug. 25; one similar ban that allows abortions up to six weeks of pregnancy that would take effect Aug. 19; and a Texas-style civil law, currently on hold from taking effect, that allows family members to sue medical providers who perform an abortion.

The Idaho Supreme Court only heard arguments for the civil law and the total abortion ban at Wednesday’s hearing, but that did not preclude discussion on the six-week abortion ban because language in the bills is conflicting in ways that may affect the court’s decision.

Justice Robyn Brody pointed to sections of the abortion ban passed by the Idaho Legislature in 2021 that outline criminal penalties for performing an abortion after fetal cardiac activity can be detected by ultrasound, which is generally around six weeks of pregnancy. That law included a provision that allows the total abortion ban to overrule it.

However, according to the language of the civil enforcement bill, the person suing a provider would have to rely on the six-week ban as the alleged violation upon which to bring the lawsuit.

“If that is rendered unenforceable by the total ban, then the civil ban is unenforceable,” Brody said. “If the end result is that the only statute that remains effective is the total abortion ban, then I think it’s probably right that this court need only stay the enforcement of the total ban pending adjudication of the constitutionality (of the law).”

Chief Justice Gregory Moeller also asked questions related to an argument made by Planned Parenthood’s attorneys, who say the total abortion ban is too vague in its provision to allow abortion providers to defend themselves in cases of rape, incest or to save the patient’s life. The language allows a physician to determine in “good faith medical judgment” that abortion was necessary to prevent a person’s death, but it does not elaborate on what constitutes a good faith action.

Moeller said that seems to be a reason to send the cases to district court, so that medical professionals can testify to what medical emergencies might necessitate an abortion procedure.

“This is going to require medical determination if we’re going to look at viability,” Moeller said. “Don’t those things cry out for medical testimony?”

Deputy Attorney General Megan Larrondo told Moeller it’s not necessary to go through that process because the law is clear enough as written.

A timeline for when the Idaho Supreme Court will issue its decision is unknown, but it will likely occur before either abortion ban takes effect, which would be Aug. 19 and Aug. 25.

Need help parsing Idaho’s abortion lawsuits?

Here are details on four lawsuits surrounding Idaho’s abortion legislation.

Senate Bill 1385, also known as the trigger law

Passed: March 2020

Becomes law: Aug. 25

Status: The Idaho Supreme Court will decide the next steps for the law after Wednesday’s hearing.

Summary: The law prohibits abortion in Idaho in nearly all cases, with potential defenses for rape, incest or to save a pregnant person’s life. In the case of rape or incest, a victim must provide a copy of a police report. If a medical provider violates the statute, they can be convicted of a felony with a sentence of two to five years in prison. Anyone who performs or assists in abortion can also have their license suspended for a minimum of six months or permanently.

Senate Bill 1309, also known as the heartbeat bill

Passed: March 2022

Becomes law: if the Idaho Supreme Court lifts a temporary pause on implementation that has been in place since April.

Status: The Idaho Supreme Court will decide the next steps for the law after Wednesday’s hearing.

Summary: The law allows civil lawsuits against medical professionals who perform abortions after fetal cardiac activity is detected, which is typically around six weeks of pregnancy. The law awards no less than $20,000 to the mother, father, grandparents, siblings, aunt or uncle of the fetus or embryo in a successful lawsuit. It includes exceptions for rape, incest or a medical emergency that would cause death or create serious risk of substantial harm to the patient.

House Bill 366, also known as the “six-week trigger ban”

Passed: April 2021

Becomes law: Aug. 19, which is 30 days after a court upheld a similar ban in Georgia. However, it may be superseded by the 2022 trigger law if the Idaho Supreme Court upholds that law.

Status: Planned Parenthood filed its lawsuit over this bill on July 25, but the Idaho Supreme Court has not yet taken action on the matter.

Summary: The law criminalizes abortion after six weeks of pregnancy, when fetal cardiac activity can typically be detected by ultrasound. If a person violates the statute, they can be convicted of a felony with a sentence of two to five years in prison.

U.S. Department of Justice v. State of Idaho

The Department of Justice announced a lawsuit Tuesday against the state of Idaho, over the state’s trigger law, arguing that it conflicts with a federal law called the Emergency Medical Treatment and Labor Act. That act requires hospitals that receive federal Medicare payments to provide medical care to stabilize all patients who come to the hospital with a medical emergency.

The federal lawsuit says Idaho’s trigger ban on abortion violates the Supremacy Clause of the U.S. Constitution because it is in conflict with the act. The Justice Department wants the U.S. District Court for the District of Idaho to permanently bar Idaho officials from enforcing the law when abortion is used to treat a medical emergency.

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