Idaho Supreme Court will hear two abortion lawsuits in early August

BOISE (Idaho Capital Sun) — The Idaho Supreme Court has vacated its original plans for a hearing on a Texas-style abortion law and will use the same date to hear specific arguments related to how that lawsuit and another challenge to the state’s trigger law banning nearly all abortions should proceed, according to two court orders.

Both cases were filed by Planned Parenthood Great Northwest and one of its abortion providers in Idaho, Dr. Caitlin Gustafson.

The hearing will include arguments over whether the Idaho Supreme Court should pause enforcement of the trigger law pending the outcome of the case, whether a pause on the Texas-style law should remain in place pending the outcome, whether the two lawsuits should be consolidated into one and whether both cases should be transferred to district court for further review.

The hearing is scheduled for 10 a.m. Aug. 3. A court order setting the hearing was filed on Thursday.

The Idaho Legislature passed an abortion trigger law in 2020, making nearly all abortions a felony with prosecutorial defenses allowed only for rape, incest and to save the pregnant person’s life. The law included a clause that would make it effective 30 days after the U.S. Supreme Court issued a judgment that returns the authority to regulate abortion procedures to the states. The U.S. Supreme Court took that action on June 24, overruling Roe v. Wade and Casey v. Planned Parenthood case law.

Under U.S. Supreme Court administration schedules, the official judgment is typically issued about 30 days after an opinion is issued, the Idaho Attorney General’s office said, meaning Idaho’s law would go into effect 30 days after that — potentially as early as Aug. 18.

The Texas-style abortion law allows civil lawsuits to be filed against medical providers who perform abortions after fetal cardiac activity can be detected by ultrasound, which is typically around six weeks of pregnancy. The Idaho Legislature passed that bill in March, and Planned Parenthood filed a lawsuit challenging it shortly afterward.

In both cases, Planned Parenthood argued Article 1 of the Idaho Constitution provides for a fundamental right to privacy in making intimate familial decisions. In a response filed Wednesday, the state of Idaho, Gov. Brad Little and Idaho Attorney General Lawrence Wasden objected to any stay of enforcement of the law and said Planned Parenthood should seek relief through the Legislature or the ballot box. The state’s argument also said the court should not consolidate the two cases, as they present different legal issues and statutes.

The lawsuit filed against Idaho’s trigger law included the Idaho Board of Medicine, the Idaho Board of Nursing and the Idaho Board of Pharmacy as named parties. Legal representatives for Planned Parenthood said they named those entities because the licensing boards have enforcement actions and the ability to suspend and revoke practitioner’s medical licenses should the practitioner perform an abortion once the total abortion ban is in effect.

The parties involved in the case must submit written arguments by July 20, according to the court order, and no reply briefs will be allowed.