The Idaho Supreme Court ruled yesterday that the state Constitution does not provide a fundamental right to abortion.
In a 3-2 decision, Chief Justice Richard Bevan, Justice Gregory Moeller and Justice Robyn Brody upheld three pro-life state laws and echoed the U.S. Supreme Court’s reasoning for overturning Roe v. Wade and Planned Parenthood v. Casey on June 24, 2022, finding that the right to an abortion is not “deeply rooted” in the state’s traditions and history.
The Court dismissed the lawsuits brought by Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky and a physician, Caitlin Gustafson, M.D., against the governor and legislative leaders in an effort to block a near-total abortion ban passed by the state legislature in 2020, a 2021 prohibition on abortions after a fetal heartbeat is detected, and a law passed in 2022 that allows potential family members of the unborn child to sue for damages.
In 2020, Idaho enacted a “trigger ban” that criminalized virtually all abortions in Idaho, with exceptions for reported cases of rape or incest, to be effective 30 days after the U.S. Supreme Court overturned Roe and Casey and returned the abortion issue back to the states. In 2021, Idaho enacted a “fetal heartbeat” law, which would allow certain civil actions against abortion providers who performed or attempted to perform an abortion after fetal cardiac activity can be detected, usually around six weeks.
Justice Robyn Brody wrote the majority opinion and stated, “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).”
The Court further wrote, “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.”
“It is undisputed that the Idaho Constitution does not contain an express right to abortion.”
However, yesterday the South Carolina state Supreme Court struck down a ban on abortion after cardiac activity is detected, ruling the restriction violates a state constitutional right to privacy.
In a 3-2 decision, the Court overturned South Carolina’s Fetal Heartbeat and Protection Act and ruled that is an unreasonable restriction upon a woman’s right to privacy to prevent her from having an abortion.
On February 18, 2021, Governor Henry McMaster signed the South Carolina Fetal Heartbeat and Protection from Abortion Act, which would require an abortion provider to test for a detectable fetal heartbeat prior to performing the procedure. If a heartbeat is detected, abortion is prohibited, except for a medical emergency. This legislation further guarantees equal protection of the rights guaranteed in the South Carolina Constitution that extends to all of its citizens, including unborn blacks and Hispanics.
The day after Governor McMaster signed the law into effect, Planned Parenthood South Atlantic, a local abortion facility, Greenville Women’s Clinic and two physicians, Katherine Farris, M.D. and Terry Buffkin, M.D, filed a federal lawsuit against the governor and various legislative leaders.
Yesterday the Court wrote, “Today we consider whether The Fetal Heartbeat and Protection from Abortion Act (‘the Act’) violates a woman’s constitutional right to privacy, as guaranteed in article I, section 10 of the South Carolina Constitution. We hold that the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable, and implicates a woman’s right to privacy. While this right is not absolute, and must be balanced against the State’s interest in protecting unborn life, this Act, which severely limits—and in many instances completely forecloses—abortion, is an unreasonable restriction upon a woman’s right to privacy and is therefore unconstitutional.”
Liberty Counsel filed an amicus brief in this case at the state High Court on behalf of the National Hispanic Christian Leadership Conference (NHCLC) and the Frederick Douglass Foundation in defense of the state’s pro-life law that protects life by prohibiting abortions after a baby’s heartbeat has been detected at approximately six weeks gestation.
The NHCLC and Frederick Douglass Foundation represent millions of African Americans and Hispanics. These minority communities have been the direct target of abortion, and most Planned Parenthood’s abortion clinics are in black and Hispanic neighborhoods. Liberty Counsel also filed an amicus brief on behalf of the NHCLC and the Frederick Douglass Foundation at the U.S. Supreme Court in the Dobbs abortion case. In overturning Roe v. Wade and Planned Parenthood v. Casey, the High Court cited to this brief acknowledging that abortion has disproportionally impacted the black community.
Liberty Counsel’s Founder and Chairman Mat Staver said, “While we celebrate victory on behalf of the unborn and women in Idaho, this tragic ruling in South Carolina is a reminder that the fight for innocent unborn life continues in the states. The people of South Carolina need to amend the Constitution to protect life. Three judges should not impose a death sentence on innocent and helpless children. Abortion is racist human genocide for profit and Liberty Counsel will never give up in the fight to help make the womb a safe place once again. Never.”