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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 ) ) 1 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 2 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 3 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 4
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