Idaho fights to preserve near-total abortion ban

The state argued a federal court issued much too broad of an injunction blocking enforcement of its abortion restrictions in certain circumstances.(CN) — Idaho faced off with a state doctor before the Ninth Circuit on Tuesday in an effort to pause an injunction barring the enforcement of the state’s abortion ban in cases in which a mother’s health is threatened.“The District Court’s injunctions here create an abortion-on-demand regime,” argued Idaho’s lawyer Mathew Hoffmann with Alliance Defending Freedom. “They leave it up to the subjective judgment of doctors to determine a risk sufficient to justify abortion.”Idaho’s Defense of Life Act and Fetal Heartbeat Act impose a near-total ban on abortion with only a narrow exception for certain abortions necessary to prevent the death of the pregnant woman.Stacy Seyb, a maternal-fetal medicine specialist, challenged the ban as it applies to three situations: pregnancies that pose serious long-term risks to the woman’s health, pregnancies that threaten the woman’s life due to the possibility of self-harm and pregnancies with severe complications that will result in the death of the fetus shortly after birth.In August, the lower court largely agreed with the doctor, finding the right to a health-preserving abortion is a liberty guaranteed by the due process clause, but holding the state may prohibit abortion in cases where the fetus is likely to die shortly after birth if the health of the woman is not impacted.U.S. District Judge B. Lynn Winmill, a Bill Clinton appointee, said the state’s failure to create an exception to the abortion ban in cases where the mother’s health is at risk is an outlier position and one that “contravenes basic principles of our constitutional order.”“A pregnant woman’s health is not a state resource to be allocated at the legislature’s whim,” Winmill wrote in an 81-page order granting the doctor’s motion for an injunction.The state immediately appealed the order, and the lower court granted its request to temporarily limit the injunction while the case pends in the Ninth Circuit shielding Seyb from enforcement of the challenged statutes, rather than all physicians in the state.Before the Ninth Circuit, the state argued the court should continue the pause of the injunction while the appeal plays out, arguing the injunction was too broad, particularly as it creates an exception for pregnant women who are threatened by mental or physical health conditions — referred to as a therapeutic abortion.U.S. Circuit Judge Marsha Berzon, a Clinton appointee, questioned whether the state thought there was a fundamental right to seek and obtain ordinary medical care.“In other words, the question is what’s the location of the woman’s right to begin with that she’s claiming? And it seems to me it’s a right to seek and obtain medical care,” Berzon remarked, noting there were state interests in play.The state argued the right must be carefully defined and that its laws were consistent with the Supreme Court’s holding in *Dobbs v. Jackson Women’s Health Org.*But the judges noted that opinion didn’t address medical exceptions.“Why should we not read this omission as implicitly allowing a woman has a constitutional right to an abortion for extreme medical emergencies?” asked U.S. Circuit Judge Consuelo Callahan, a George W. Bush appointee.To the state, the high court’s holding was not so limited. Idaho contended even a narrow injunction is inappropriate because Seyb failed to show a significant historical basis for a deeply rooted right.But Seyb disagreed, arguing the injunction is already narrow and would enable just a small number of patients in dire need to obtain an abortion.For example, one of Seyb’s patients had end-stage renal disease and would have lost her place on the kidney transplant list without an abortion.“Because people with high-risk pregnancies have a right to life- and health-preserving abortion care, and because the injunction is tailored to protect that right, the state is not entitled to the extraordinary remedy of a stay pending appeal,” argued Stephanie Toti, attorney with the Lawyering Project representing Seyb.The panel questioned Seyb about whether the lower court considered the same historical evidence as the Supreme Court did when deciding Dobbs, and if so, how he came to such a different conclusion.“What matters most to the constitutional analysis is how the public understood the status of therapeutic abortion at the time the 14th Amendment was ratified,” argued Toti. “And the record in this case demonstrates a broad societal consensus that abortions performed for medical reasons were lawful.”The judges also questioned the extent to which a pregnant woman’s mental health can be the basis for an exception.“If a patient is facing serious and lasting injury from a mental health condition, then I believe the injunction applies,” Toti said.The panel, which also included U.S. Circuit Judge Kim Wardlaw, a Clinton appointee, did not indicate when it would rule.Categories / Health, RegionalSubscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads