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Tuesday 28 May |
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A closer look at the Idaho Supreme Court decision to block abortion

Idaho state flag justice scales


J-P Mauro - published on 01/12/23

The court found that the state did not have a "deeply rooted" tradition or history to condone enshrining the procedure.

The Idaho State Supreme Court has dismissed a trio of lawsuits that challenged the state’s near total ban on abortion. The judgment found that the state did not have a “deeply rooted” history or tradition of allowing abortion and thus decided that there was no indication that abortion should be enshrined as a “right” in Idaho.

According to local Idaho news source KMVT, the lawsuits challenged three laws that place restrictions on abortion. The first allows family members of the aborted baby to sue the doctor responsible, the second makes it illegal to perform an abortion after a heartbeat is detected, and the third effectively bans all abortions and allows doctors to defend themselves in court only if they can prove a legitimate threat to the life of the mother.

Politico reports that the Supreme Court decision was a close one, only passing in a 3-2 vote. The majority opinion, written by Justice Robyn Brody, noted that the state has a “legitimate interest in protecting prenatal fetal life in all stages of development, and in protecting the health and safety of the mother.”

Justice Brody went on to explain how the court came to determine that Idaho did not have a strong enough tradition linked to the procedure to enshrine it as a “right.” She wrote:

“The relevant history and traditions of Idaho show abortion was viewed as an immoral act and treated as a crime,” Brody wrote. “Thus, we cannot conclude the framers and adopters of the Inalienable Rights Clause intended to implicitly protect abortion as a fundamental right.”

While the court found no historical precedent to enshrine abortion, Brody did note that the laws could be subject to change via the introduction of new legislation. Similar to the US Supreme Court decision to overturn Roe, she reiterated that nothing is preventing voters from electing new representatives who could change the law:

“We emphasize that all we are deciding today is that the Idaho Constitution, as it currently stands, does not include a fundamental right to abortion.”

Aleteia previously reported that the Idaho decision came around the same time that South Carolina ruled that the state’s right to privacy laws included the right to abortion. Idaho, however, has no right to privacy within its state constitution and could not piggyback off the precedent set by South Carolina.

AbortionLawUnited States
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