Idaho Supreme Court allows trigger law banning nearly all abortions to take effect

Court also lifts stay on civil enforcement bill, which will be effective immediately

By: - August 13, 2022 9:54 am

A Bans Off Our Bodies rally attendee holds up a sign in front of the Idaho Capital Building on May 14, 2022. Several thousand Idahoans attended the event to listen to guest speakers and march toward the Idaho Supreme Court. (Christina Lords/Idaho CapitalSun)

Idaho’s trigger law banning abortion in nearly all cases will go into effect on Aug. 25, and the heartbeat law allowing civil lawsuits against medical providers will go into effect immediately following an opinion from the Idaho Supreme Court on Friday evening.

The opinion did not make a determination regarding the law banning abortion after six weeks of pregnancy, which is scheduled to take effect in one week.

The decision comes after a hearing on Aug. 3 to address procedural questions about whether the trigger law’s implementation should be paused, whether a pause on the heartbeat law should be lifted, and whether the two lawsuits should be consolidated and handed to a lower court for additional development.

“As of August 19, 2022, the state will be able to criminally enforce the heartbeat act’s prohibition on abortions and, in turn, carry out its duty to ensure the laws of Idaho are faithfully executed,” the opinion said.

The opinion is written by Justice Robyn Brody, and Chief Justice Richard Bevans and Justice Gregory Moeller concurred. Justice John Stegner concurred with the decision to consolidate the cases and not send them to district court, but dissented with the decision not to grant a stay and to vacate the pause on the heartbeat law. Stegner added that he would have also stayed enforcement of the six-week ban on abortions that will take effect Aug. 19.

“No one seriously disputes that the petitioners have established a showing of irreparable harm if a stay is not granted. That is all that is required under Idaho’s rules of procedure,” Stegner said. “The state and the Legislature’s only argument that irreparable harm will not result is that the Idaho Constitution does not protect the right to an abortion. This argument fails because it is premised on a decision we have not yet made. Staying the enforcement … would preserve the status quo that has been in effect for nearly 50 years and allow the parties the opportunity to craft their arguments and for us to consider the merits of these cases with the care and attention they deserve.”

Justice Colleen Zahn concurred with Stegner’s dissenting opinion.

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

The court also decided to consolidate the three cases into one and retain its jurisdiction rather than sending it to a lower court. Justices in the Aug. 3 hearing signaled that the case could be remanded to a lower court if there was a need for testimony from physicians, for example.

During the hearing earlier this month, attorneys for Planned Parenthood said the vagueness of the trigger law’s language would lead to impossible situations for medical professionals to navigate, with no clarity on what would constitute a “good faith” judgment that led to an abortion in a medical emergency.

According to the language of the trigger law, affirmative defenses are allowed for abortion in the case of rape, incest and to save the pregnant person’s life. An affirmative defense is not the same as an exception, and instead means that if someone is prosecuted under the trigger law, those situations are acceptable as a defense in court. In the case of rape or incest, the victim must also provide a copy of a police report.

Oral arguments on the now-consolidated case are scheduled to take place at 9 a.m. Sept. 29 in Boise.

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Kelcie Moseley-Morris
Kelcie Moseley-Morris

Kelcie Moseley-Morris is an award-winning journalist who has covered many topics across Idaho since 2011. She has a bachelor’s degree in journalism from the University of Idaho and a master’s degree in public administration from Boise State University. Moseley-Morris started her journalism career at the Moscow-Pullman Daily News, followed by the Lewiston Tribune and the Idaho Press.