A federal district judge has ruled that Idaho’s pre-born protections are unconstitutional due to the lack of expansive exceptions, holding that “the right to a health-preserving abortion is one of the liberties guaranteed by the Due Process Clause.” The law in question already has exceptions for abortions deemed medically necessary to save the life of the mother, but Judge Winmill judicially expanded these grounds by twisting a “history and tradition” analysis to fit the outcome the judge preferred.
Idaho seeks to protect life at all stages. Its Defense of Life Act and Fetal Heartbeat Act specifically protect human life in the womb, with exceptions for procedures “necessary to prevent the death of the pregnant woman.” The protections’ application was challenged in three hypothetical scenarios:
- Pregnancies that pose serious long-term risks to the woman’s health
- Pregnancies that threaten the woman’s life due to self-harm
- Pregnancies with severe fetal complications which will result in the death of the fetus shortly after birth
On the third question, the Court claimed the policy “forces women to remain pregnant for weeks or months knowing that the outcome will be to watch their child die, often within minutes of birth.” Yet it admitted the state has a legitimate interest in preventing abortions based on mistaken diagnoses; thus, it is constitutional.
However, the Court answered the first two questions with thwarted Constitutional justifications that tiptoed around the clarity the U.S. Supreme Court offered in Dobbs v. Jackson Women’s Health Organization in 2022.
In Dobbs, the Court held that the Constitution does not confer a right to abortion and upheld Mississippi’s 15-week Gestational Age Act. In doing so, it took the courts out of the debate, leaving it “to the people and their elected representatives.”
However, in the opinion penned by Clinton-appointed Judge Winmill, the court argues a slightly narrower “right to a health-preserving abortion” is a liberty guaranteed by the Due Process Clause of the Fourteenth Amendment.
Though Justice Alito explicitly noted that, on Due Process, it has been held that to guarantee some rights not mentioned in the Constitution, they must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concepts of ordered liberty” (Washington v. Glucksberg). To which, according to the Supreme Court, “the right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law.”
However, this lower District Court claims states with pre-born protections at the time of the Amendment’s ratification in 1868 “universally recognized some version of a therapeutic exception.” Winmill cites Connecticut’s first-of-its-kind legislation passed in 1821 that prohibited poison to induce miscarriage if done “willfully and maliciously,” implying otherwise was “medically justified.” Only two states, at the time of ratification, had broad “health exceptions” (“safety” “bona fide medical or surgical purposes”) in their pre-born protections, and nineteen had narrow exceptions to “save” or “preserve” the life of the mother.
The District Court acknowledged that early courts did not often discuss “abortions performed for medical reasons;” however, they “emphasized deference to the judgment of the physician.” And though the opinion admits there are no decisions discussing this issue precisely, they claim these laws “treated ‘life’ and ‘health’ interchangeably.”
This claim is the bedrock for the Court’s path around Dobbs. It insists, then, that the “health” of the mother is rightly rooted in history, not just their “life.”
As applied to the Idaho protections, the Judge uses this assertion to expand its original exemption beyond saving the life of the mother and allows for abortions in cases to preserve her overall health and prevent death from self-harm.
These are no longer rare exceptions, but rather a roadmap back to elective abortion rights. Self-harm, for example, is largely self-reported and/or threatened. And even under the most serious mental diagnoses, terminating the life of a child is never a suitable treatment for a disease of the mind.
Second, the judge applied an overly broad “health” definition. Pregnancy, and when applicable, subsequent parenthood, will always bring associated costs. Morning sickness, labor, in many cases postpartum depression, sleepless nights, and many, many more pregnancy-related symptoms and events take a toll on your overall health. Some physical changes to your body never fully revert post-pregnancy. Permitting the taking of human life in any case where continuing it would “prevent a serious and lasting impairment to the health of the mother” is so broad it could eliminate any meaningful protections for life in the womb. Especially when “health” is interpreted beyond physical health and includes financial and social well-being.
The Judge says the current standard places an unworkable burden on doctors’ ability to provide life-saving care. It notes, “Medical providers in Idaho are understandably reluctant to provide abortion under any circumstance due to fear of prosecution.”
Buy the Idaho law is clear: abortions are not considered criminal if the physician determines, in good-faith medical judgment, that it is necessary to prevent the death of the pregnant woman. Doctors operate under medical judgment daily. If the fear-mongering scare tactics of pro-abortionists are keeping them from providing the life-saving care that law permits, that is an issue of improper care. It is no excuse to swing wide the gates of elective life-taking abortions.
This decision is, at its core, a political chess move, chipping at the clear legal standards set by Dobbs, and women in need of life-saving medical care are paying the price. Idaho, thankfully, has challenged the ruling in the Ninth Circuit Court of Appeals.
