Fate of abortion now in the hands of Idaho Supreme Court

BOISE, Idaho — After over two hours of discussion, the fate of abortion in Idaho is now in the hands of the gem state’s Supreme Court Justices.

The hearing Thursday morning addressed Idaho’s “trigger abortion ban,” which banned virtually all abortions the moment Roe v. Wade was overturned by the Supreme Court, along with a civil enforcement bill. That allows family members to sue medical providers who perform abortions. Thursday morning marked six weeks since they had been enacted.

In the case of Planned Parenthood v. State of Idaho, both sides had one hour to present their side before the Idaho Supreme Court.

Alan Schoenfeld, the attorney representing Planned Parenthood, kicked off the hearing with a 50-minute argument in opposition to the abortion ban.

“For 50 years, generations of Idaho women have had control over their bodies and lives, with respect to the most intimate, personal, and private decision imaginable,” Schoenfeld said. “Whether to carry a pregnancy to term, or whether to terminate it.”

Schoenfeld argued to the Court that abortion is a fundamental right for women, protected by the Idaho Constitution. Even if it’s not explicitly spelled out.

“There’s an evolution, even though the terms of the Constitution remain the same,” he said.

Planned Parenthood later stated that abortion is a fundamental right, then Justice Colleen Zahn interjected.

“You can have a fundamental right, that doesn’t stop the state from trying to regulate the fundamental right,” said Justice Zahn.

“The state can certainly regulate it. What we’re dealing with here is not a regulation. It’s a ban,” Schoenfeld said.

Schoenfeld conceded that the state’s interest becomes greater the further along a pregnancy progresses, but doubled down on the argument that a complete abortion ban eliminates the right to bodily autonomy for women.

“A total abortion ban that allows the state to forbid the termination of a pregnancy from the moment of conception, I think reads the right entirely out of existence and gives no respect to the woman’s fundamental right to bodily autonomy.”

After Schoenfeld stepped down, the State then addressed the Court, quickly asserting that there’s no right to abortion hidden within the state Constitution.

“There is no evidence that the drafters of the Idaho Constitution intended to protect, as a fundamental right, the ability to have an abortion,” said Megan Larrondo, from the Idaho Attorney General’s office. “This court should heed the presumption of constitutionality that is afforded to legislative enactments and uphold the challenged laws against petitioner’s various challenges.”

Lorrando later argued that the right to abortion is not protected by the right to liberty, a notion quickly challenged by Justice Zahn.

“I don’t know how, under the right to liberty, you say there is not a right to make decisions about your own body.”

“The difference is, abortion takes a potential human life,” Larrondo answered.

“That may give this state a compelling interest to pass a law but that doesn’t change my right to liberty including my right to make decisions about my own body.”

Lorrando was met with challenges from each Justice from the court, particularly in regard to the woman’s health during pregnancy.

“The woman’s health is not mentioned in the statute,” said Lorrando. “I would not read [statute] 18.6.22’s affirmative defense as saying that an abortion is allowed, when necessary, to protect the woman’s health. It is only when the abortion is necessary to protect the woman’s life.”

“So we don’t care about the woman’s health?” asked Justice John Stegner.

“I disagree with that, your honor,” Lorrando said.

“Show me how we care about that when we haven’t mentioned it in the statute and you said it wouldn’t be applicable,” Stegner replied.

“The fetus’ life cannot be terminated at the expense of the woman’s health. But it can be terminated to save the woman’s life,” Lorrando responded.

“So you’re saying we don’t care about the woman’s health?”

“I disagree with that articulation, your honor. We care about the woman’s health, but we care about the life of the fetus as well.”

“So the life of the fetus overcomes the health of the mother?”

“Yes, your honor,” said Lorrando, later stating their main concern was protecting life.

Planned Parenthood reserved 10 minutes to respond to the State’s arguments. Once they concluded, the court was adjourned, and the Justices will now confer.

READ: Judge: Idaho abortion ban seems to conflict with federal law