On January 5, 2023, the Idaho Supreme Court issued its opinion in Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky v. State of Idaho. In a 3-2 decision, the Court upheld three Idaho laws severely restricting access to abortion. The justices covered a lot of ground in a majority opinion and two dissents spanning 139 pages, but this post will focus on the role of originalism in the Court’s analysis.
The Court grappled with, among other things, whether Article I, Section 1 of the Idaho Constitution guarantees in some form the right to an abortion. The five justices answered that question in three ways, revealing their differences in constitutional interpretation along the way. A careful analysis of those differences informs how advocates should present future state constitutional questions to the Court.
Starting with a point of commonality, the justices all agreed that the Court should start with the text. Article I, Section 1 says: “All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.” That list of inalienable rights does not mention abortion, but the list is also not exhaustive. So the justices were left to determine whether Article I, Section 1 contains an implicit right to abortion. The justices diverged on how to answer that question, which then of course led to different answers.
The majority (Chief Justice Bevan and Justices Brody and Moeller) held that the Court must look at the Idaho Constitution’s meaning “as intended at the time of  adoption.” In other words, the majority held that the Idaho Constitution is static and “can only mean what was intended by those who framed and adopted it.” The majority’s analysis thus examined Idaho’s history and tradition. In the majority’s view, “nothing in Idaho’s territorial laws, territorial sessions, early publications, constitutional convention, statutes, common law, or early medical regulations, suggests that a right to abortion is ‘deeply rooted’ in the history and traditions of Idaho. Thus, a ‘right to abortion’ is not part of Idaho’s ‘ordered liberty’ such that it could be implicitly protected by, and read into, the Inalienable Rights Clause in the Idaho Constitution as a fundamental right.” As a result, the majority held that any law regulating abortion need only satisfy rational-basis review.
In her dissent, Justice Zahn agreed that Idaho’s “history and tradition are important and often controlling considerations.” But in her view, “they should not always be the sole consideration” as “Idaho’s Constitution was not ‘frozen in time.’” Justice Zahn interpreted Idaho’s history and tradition as including, among other things, laws, medical regulations, and publications that permitted abortions to preserve a mother’s life or health. She thus concluded that Article I, Section 1 includes an implicit right to abortion to preserve the mother’s life or health and any law infringing on that right must withstand strict scrutiny.
Justice Stegner joined Justice Zahn’s dissent and wrote his own. In his dissent, he rejected what he called the “deeply rooted in history and tradition test.” He also rejected the premise that the Idaho Constitution is static, writing that “[t]he Idaho Constitution was adopted to govern Idaho for years to come, not to stop the clock in 1889.” In his view, Article I, Section 1’s guarantees of life, liberty, safety, and happiness all implicate the right to abortion. And “this provides more than ample support to conclude that the right to terminate a pregnancy is ‘implicit in Idaho’s concept of ordered liberty’ and is, therefore, a fundamental right protected by the Idaho Constitution.”
In sum, the justices differed on what role, if any, originalism should play when interpreting constitutional text. The majority held that the Court should consider the text’s original meaning, but at times also seemed to consider original intent. Justice Zahn seemed open to considering original meaning based on an analysis of tradition and history, but she did not view those considerations as controlling. Justice Stegner was less interested in history and tradition, and instead focused on the implications of the guarantees of life, liberty, safety, and happiness contained in Article I, Section 1’s text.