Planned Parenthood Great Nw. v. State, 49615

CourtUnited States State Supreme Court of Idaho
Writing for the CourtBRODY, JUSTICE
PartiesPLANNED 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, Respondent, 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. 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 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.
Docket Number49615,49817,49899
Decision Date12 August 2022

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, Respondent,

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. 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 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.

Nos. 49615, 49817, 49899

Supreme Court of Idaho

August 12, 2022


In the Matters of the Petitions for Writs of Prohibition.

Wilmer Cutler Pickering Hale and Dorr, LLP, New York and Bartlett &French, LLP, Boise, Idaho, for Petitioners Planned Parenthood, etal. Alan E. Schoenfeld argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent State of Idaho. Megan A. 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 N. Stewart argued.

BRODY, JUSTICE

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The Court held a public hearing on August 3, 2022 to address specific procedural matters the parties were ordered to brief and argue. All parties agree the Court should consolidate all three actions filed by Petitioners for purposes of oral argument and issuing an opinion. Furthermore, all parties agree the Court should not transfer these matters to the district court for development of a

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factual record under Idaho Appellate Rule 5(d). The only issues in dispute are whether the Court should stay the enforcement of Idaho Code section 18-622(2) and whether it should continue to stay the enforcement of Senate Bill 1309. For the reasons discussed below, we: (1) consolidate Docket Nos. 49615-2022, 49817-2022, and 49899-2022 for purposes of oral argument and opinion; (2) retain the consolidated cases; (3) deny Petitioners' request to stay the enforcement of Idaho Code section 18-622 in Docket No. 49817-2022; and (4) vacate the stay of the enforcement of Senate Bill 1309 entered by the Court on April 8, 2022 in Docket No. 49615-2022. Oral argument on the merits of the petitions will be held on September 29, 2022 at 9:00 a.m.

I. BACKGROUND AND PROCEDURAL HISTORY

The Idaho Legislature has enacted two independent statutes criminalizing abortion. In 2020, the legislature passed a law making it a felony for anyone to perform or attempt to perform or assist with an abortion. I.C. § 18-622(2) ("Total Abortion Ban"). This law allows for affirmative defenses to prosecution where the abortion is necessary to prevent the death of a pregnant woman, or the pregnancy resulted from rape or incest that was reported to law enforcement. I.C. § 18622(3). Recognizing the constitutional impediments presented by Roe v. Wade, 410 U.S. 113 (1973), the Total Abortion Ban expressly states it will only go into effect thirty days following "[t]he issuance of the judgment in any decision of the United States supreme court that restores to the states their authority to prohibit abortion ...." I.C. § 18-622(1)(a).

A year later, the legislature passed the Fetal Heartbeat Preborn Child Protection Act. See 2021 Idaho Laws Ch. 289 (H.B. 366) (originally codified as I.C. §§ 18-8701 to -8708). The Act makes it a felony to perform an abortion on a woman when a fetal heartbeat is detected, except in cases involving a medical emergency, rape, or incest. I.C. § 18-8704 (2021). In its original form, the Act also provided a private cause of action for a woman who underwent an abortion to recover damages from medical professionals who intentionally, knowingly, and recklessly violated the Act. See I.C. § 18-8707 (2021). Again, recognizing federal constitutional impediments to implementing the law, the Act expressly provided that it would take effect" . . . immediately upon the issuance of the mandate in any United States appellate court case in which the appellate court upholds a restriction or ban on abortion for a preborn child because a detectable heartbeat is present on the grounds that such restriction or ban does not violate the United States constitution." See I.C. § 18-8706 (2021).

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In 2022, the Idaho Legislature amended and re-codified the Fetal Heartbeat Preborn Child Protection Act to expand the private cause of action in favor of fathers, grandparents, siblings, and aunts and uncles of the preborn child and to add statutory minimum damages of $20,000. See I.C. § 18-8807(1) (2022). Importantly, the amended Act also repealed Idaho Code section 18-8706- the provision which delayed the effectiveness of the Act-and moved the "trigger language" to the section providing criminal penalties for a violation of the Act. See 2022 Idaho Laws Ch. 152 (S.B. 1309) and I.C. § 18-8805. This amendment meant the civil liability provision would become effective on April 22, 2022 (pursuant to an emergency clause in Senate Bill No. 1309), but the criminal liability provisions would remain dormant until "triggered."

On March 30, 2022, a week after Idaho Governor Brad Little signed Senate Bill No. 1309 ("Civil Liability Law" or "S.B. 1309") into law, Petitioners filed their first Petition for Writ of Prohibition, Docket No. 49615-2022, challenging the Civil Liability Law on state constitutional grounds. The Court initially agreed to hear the matter on an expedited basis, but subsequently granted a motion to reconsider filed by the State and agreed to give the parties additional time to submit briefing. As part of its Order Granting Motion to Reconsider, the Court also ordered that the implementation of Senate Bill 1309 be stayed to preserve the status quo as requested by the parties: "The parties having both requested action by this Court to preserve the status quo to give the parties the ability to adequately brief this case, pursuant to I.A.R. 13(g) the implementation of Senate Bill 1309 is STAYED, pending further action by the Court." The State subsequently moved to vacate the stay, disputing that it had requested the stay. The Court denied the motion and set the case for oral argument to be held on August 3, 2022.

About three weeks after Petitioners' challenge to the Civil Liability Law was set for oral argument, the United States Supreme Court issued its landmark decision in Dobbs v. Jackson Women's Health Organization, 142 S.Ct. 2228 (June 24, 2022). In Dobbs, the Supreme Court held: "The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives." 142 S.Ct. at 2284. There is no dispute that the Supreme Court's decision has "triggered" the Total Abortion Ban and the effective date of that ban is imminent. Three days after the Dobbs decision was issued, Petitioners filed their second Petition for Writ of Prohibition, Docket No. 49615-2022, this time challenging the Total Abortion Ban under the Idaho Constitution and the Idaho Human Rights Act. Petitioners contend,

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among other things, there is an implicit constitutional right to procreate and make intimate family decisions that include the right to abortion.

On June 30, 2022, six days after Dobbs was issued, the Court vacated the merits argument scheduled for August 3, 2022 and ordered the parties to brief and argue the procedural questions addressed in this opinion and accompanying order. Before the ordered briefing was complete, the United States Court of Appeals for the Eleventh Circuit upheld a Georgia law prohibiting abortions after a detectable human heartbeat, thus "triggering" the criminal liability provisions of the Fetal Heartbeat Preborn Child Protection Act (I.C. §§ 18-8004, -8005). See SisterSong Women of Color Reprod. Just. Collective v. Governor of Ga., F.4th, 2022 WL 2824904 (11th Cir. July 20, 2022) (holding that Dobbs foreclosed the abortion providers' challenge to Georgia's fetal heartbeat act).

On July 25, 2022, Petitioners filed their third Petition for Writ of Prohibition, Docket No. 49899-2022, this time challenging the Fetal Heartbeat Ban. Petitioners repeat essentially the same arguments presented in their second petition.

II. ANALYSIS OF PRELIMINARY STAYS OF ENFORCEMENT

A. Petitioners' Request to Stay Enforcement of the Total Abortion Ban is Denied.

Petitioners have requested that the Court enter an order staying enforcement of the Total Abortion Ban. We ordered the parties to present argument at the August 3 hearing on whether a stay should be issued. For the reasons discussed below, even if Petitioners have met the legal standard for demonstrating irreparable harm, the request for a preliminary stay of the Total Abortion Ban is denied because Petitioners have not demonstrated a substantial likelihood of success on the merits or a "clear right" to the relief sought.

The Idaho Appellate Rules do not set forth a legal standard governing when a stay should...

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