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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 ...

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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 
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...In the supreme court of state idaho docket nos planned parenthood great northwest hawaii alaska indiana kentucky on behalf itself its staff physicians and patients caitlin gustafson m d herself her petitioners v boise october term respondent opinion filed january melanie gagnepain clerk scott bedke his official capacity as speaker house representatives chuck winder president pro tempore senate sixty sixth legislature intervenors respondents brad little governor lawrence g wasden attorney general jan bennetts ada county prosecuting grant p loebs twin falls board medicine nursing pharmacy original proceedings before petitions for extraordinary writs prohibition declaratory relief are denied wilmer cutler pickering hale dorr llp new york bartlett french et al alan schoenfeld argued megan larrondo monte neil stewart las vegas nevada morris bower haws pllc nampa brody justice these cases primarily concern whether constitution protects abortion from s broad power to enact laws concerning pub...

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