In Dobbs v. Jackson Women’s Health Organization, the Supreme Court held in June that the U.S. Constitution “does not confer a right to abortion” and, therefore, abortion advocates will be challenging pro-life laws in state courts under state constitutions.
On Thursday, the Idaho Supreme Court upheld that state’s ban on abortion, holding that “we cannot read a fundamental right to abortion into the text of the Idaho Constitution.” (On the same day, the South Carolina Supreme Court came to the opposite conclusion about that state’s constitution.)
Idaho first made abortion a crime in 1864, when it was still a territory, and enacted many laws protecting the unborn since then, including new abortions bans in 2020 and 2021.
They would become effective, the laws stated, when the Supreme Court overruled Roe v. Wade, its 1973 decision inventing a right to abortion. By doing so in Dobbs, the court returned “the authority to regulate abortion … to the people and their elected representatives.”
Planned Parenthood sued, claiming that those laws violated the Idaho Constitution.
Idaho is one of 47 states with a constitution that does not explicitly protect a right to abortion. Nor is it one of the 12 states in which the state supreme courts had already interpreted other constitutional provisions to do so.
Planned Parenthood wanted Idaho to join that list by finding an implicit right to abortion in Article I, Section 1 of the Idaho Constitution, which recognizes “inalienable rights,” including “enjoying and defending life and liberty.”
In Planned Parenthood v. State of Idaho, by a 3-2 vote, the state Supreme Court declined to do so.
In her majority opinion, Justice Robyn Brody first explained that the Idaho Constitution must be interpreted “based on the plain and ordinary meaning of its text, as intended by those who framed and adopted the provision at issue.”
As a result, Brody wrote, “for us to read a fundamental right into the Idaho Constitution, we must examine whether the alleged right is so ‘deeply rooted’ in the traditions and history of Idaho at the time of statehood that we can fairly conclude that the framers and adopters of the Inalienable Rights Clause intended to implicitly protect that right.”
Brody’s opinion is especially instructive because she thoroughly presented why this is the proper approach to determining whether a written constitution protects unwritten rights. “[O]ur duty as the judicial branch [is] to sustain the law—not to promote our personal policy preferences. If we were to jettison that disciplined approach … 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.”
Planned Parenthood also argued that a right to abortion could be found in Article I, Section 21, which mirrors the U.S. Constitution’s Ninth Amendment: “The enumeration of rights shall not be construed to impair or deny other rights retained by the people.”
Brody rejected the notion that this was “intended to be a repository of implicit substantive rights.” Instead, it is an “interpretive instruction” that the listing of rights “does not mean that any unlisted right is insecure or unprotected.”
In light of this instruction, Brody explained, the only fundamental rights implicit in the inalienable rights clause are those that “existed in 1889 when the people ratified that provision.” This helps “avoid subjective injections of what we think ‘fair,’ ‘just,’ or ‘good policy’ to reach a desired outcome.”
Brody considered “the relevant history and traditions of Idaho [that] show abortion was viewed as an immoral act and treated as a crime.” She concluded that “a ‘right to abortion’ is not part of Idaho’s ‘ordered liberty’ such that it could be implicitly protected by, and read into, the Inalienable Rights Clause … as a fundamental right.”
Brody also addressed arguments by the two dissenting justices. She noted that Justice John Stenger advocated creating a right to abortion “that goes far beyond the holding of Roe v. Wade.”
And Brody rejected Justice Colleen Zahn’s suggestion that “the meaning of Idaho’s Constitution must change with the times,” as well as the speculation by both dissenters that a future legislature might enact even more restrictive abortion laws.
“What the legislature might do in the future does not drive our decisions,” Brody wrote, “We issue opinions based on actual cases and controversies that come before us today—not the hypothetical fears of tomorrow.”
This decision, and Brody’s exhaustive 106-page opinion explaining it, are models for the supreme courts in other states to follow. Like the U.S. Supreme Court did in Dobbs, it rigorously refused to veer into personal views or agendas, recognizing that the people and their elected representatives, not judges, have authority to handle such challenging issues.
This piece originally appeared in The Daily Signal