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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket. Nos. 49615, 49817, 49899
PLANNED PARENTHOOD GREAT )
NORTHWEST, HAWAII, ALASKA, )
INDIANA, KENTUCKY, on behalf of itself, its )
staff, physicians and patients, and Caitlin )
Gustafson, M.D., on behalf of herself and her )
patients, )
)
Petitioners, )
)
v. )
)
STATE OF IDAHO, )
) Boise, October 2022 Term
Respondent, )
) Opinion filed: January 5, 2023
and )
) Melanie Gagnepain, Clerk
SCOTT BEDKE, in his official capacity as )
Speaker of the House of Representatives of the )
State of Idaho; CHUCK WINDER, in his )
official capacity as President Pro Tempore of )
the Idaho State Senate; and the SIXTY-SIXTH )
IDAHO LEGISLATURE, )
)
Intervenors-Respondents. )
_____________________________________ )
)
PLANNED PARENTHOOD GREAT )
NORTHWEST, HAWAII, ALASKA, )
INDIANA, KENTUCKY, on behalf of )
itself, its staff, physicians and patients, )
and CAITLIN GUSTAFSON, M.D., on behalf )
of herself and her patients, )
)
Petitioners, )
)
v. )
)
STATE OF IDAHO; BRAD LITTLE, in his )
official capacity as Governor of the State of )
Idaho; LAWRENCE G. WASDEN, in his )
)
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official capacity as Attorney General of the )
State of Idaho; JAN M. BENNETTS, in her )
official capacity as Ada County )
Prosecuting Attorney; GRANT P. LOEBS, in )
his official capacity as Twin Falls County )
Prosecuting Attorney; IDAHO STATE )
BOARD OF MEDICINE; IDAHO STATE )
BOARD OF NURSING; and IDAHO STATE )
BOARD OF PHARMACY, )
)
Respondents, )
and )
)
SCOTT BEDKE, in his official capacity )
as Speaker of the House of )
Representatives of the State of Idaho; )
CHUCK WINDER, in his official )
capacity as President Pro Tempore of the )
Idaho State Senate; and the SIXTY- )
SIXTH IDAHO LEGISLATURE, )
)
Intervenors-Respondents.
Original proceedings before the Supreme Court of the State of Idaho.
The petitions for extraordinary writs of prohibition and declaratory relief are
denied.
Wilmer Cutler Pickering Hale and Dorr, LLP, New York and Bartlett & French,
LLP, Boise, Idaho, for Petitioners Planned Parenthood, et al. Alan Schoenfeld
argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent State of
Idaho. Megan Larrondo argued.
Monte Neil Stewart, Las Vegas, Nevada, and Morris Bower & Haws PLLC,
Nampa, Idaho, for Intervenors Scott Bedke, Chuck Winder, and the Legislature.
Monte Neil Stewart argued.
_______________________________________________
BRODY, Justice.
These cases primarily concern whether the Idaho Constitution protects abortion from the
legislature’s broad power to enact laws concerning the public’s health, welfare, and safety. Planned
Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky, and Caitlin Gustafson, M.D., on
behalf of herself and her patients (collectively “Petitioners”), bring three petitions, each seeking a
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writ of prohibition and declaratory relief blocking implementation and enforcement of recently
enacted laws: Idaho Code sections 18-622(2) (“Total Abortion Ban”), 18-8804 and -8805 (“6-
Week Ban”), and 18-8807(1) (“Civil Liability Law”). Apart from their central claim that these
laws violate an implicit fundamental right to abortion purportedly contained in the Idaho
Constitution, Petitioners also raise various facial challenges, claiming these laws offend important
constitutional principles, such as equal protection, due process, the special laws provision, the
separation of powers doctrine, and purported “informational privacy” protections under the Idaho
Constitution. Petitioners further claim that the Idaho Human Rights Act limits the legislature’s
ability to regulate abortion through the Total Abortion Ban and 6-Week Ban. For the reasons
discussed below, we deny Petitioners’ requests for extraordinary writs of prohibition and
declaratory relief.
I. BRIEF SUMMARY
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).
For the reasons discussed below, 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.
The Inalienable Rights Clause in Article I, section 1 of the Idaho Constitution, which lists
the rights to life, liberty, and property, provides the textual basis for the recognition of implicit
fundamental rights. Indeed, Article I, section 21, while not purporting to be a repository of implicit
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rights, provides that the listing of rights in the Idaho Constitution “shall not be construed to impair
or deny other rights retained by the people.” The Inalienable Rights Clause was framed at Idaho’s
constitutional convention in 1889 and ratified by the people of Idaho later that same year. Thus,
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.
When we apply that test to this dispute, there simply is no support for a conclusion that a
right to abortion was “deeply rooted” at the time the Inalienable Rights Clause was adopted.
Nothing in the territorial laws of Idaho, the record of the 1889 constitutional convention, the
surrounding common law and statutes, the surrounding publications of the times, or Idaho’s
medical regulations at that time show abortion was viewed as a right entitled to heightened
protection from the legislature’s regulatory power. To the contrary, the relevant history and
traditions of Idaho show abortion was viewed as an immoral act and treated as a crime. Thus, we
cannot conclude the framers and adopters of the Inalienable Rights Clause intended to implicitly
protect abortion as a fundamental right.
Importantly, nothing about this decision prevents the voters of Idaho from answering the
deeply moral and political question of abortion at the polls. For example, if the people of Idaho
are dissatisfied with these new laws, they can elect new legislators. Additionally, the Idaho
Constitution is not immutable. Indeed, a review of the session laws of this State reveals that the
people of Idaho have amended the Idaho Constitution 135 times since 1889—and many of these
amendments span the political spectrum. In fact, voters rejected a proposal in 1970 which would
have added an explicit “right of privacy” in Article I, section 1 of the Idaho Constitution in a
proposed re-write of the Constitution. 1970 Idaho Sess. Laws 739, 740. Thus, 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.
This conclusion answers the central question Petitioners have raised in their petitions.
Additionally, as explained below, we conclude that the Total Abortion Ban, 6-Week Ban, and Civil
Liability Law each pass the familiar test for determining the constitutionality of most legislation:
“rational-basis” review. Under that form of review, each of these laws is constitutional because it
is rationally related to the government’s legitimate interest in protecting prenatal fetal life at all
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