This should not stand.
This should not stand.
T he fall of Roe in Dobbs v. Jackson made two things clear: that abortion was a matter best left to state electorates to decide for themselves, and that the right to an elective abortion did not exist in the U.S. Constitution. Like many deep-red states freed from Roe’s judicial fiat, Idaho’s trigger laws on abortion went into effect immediately, banning abortion at any point in pregnancy with only strict exceptions in cases of rape or incest (prior to six weeks of gestation) or risk of death to the mother.
But in Seyb v. Labrador, an Idaho district court is the first to have “found” a new constitutional right to a “health-preserving abortion.” In an August ruling, the court claims it had discovered that the fundamental right to abortion is protected when the continuation of a pregnancy will harm the woman, or if denial of the abortion will lead to her death from self-harm. Dr. Stacy Seyb, an obstetrician who handles high-risk pregnancies at the St. Luke’s fetal-medicine clinic — founded by the Episcopal diocese — sued state and local officials who enforce the state’s abortion ban. He alleged that the ambiguity and far-reaching nature of the laws forced him to send patients in life-threatening pregnancies out of state for abortions and argued that the laws violated the due process and equal protection clauses of the 14th Amendment.
The court agreed, ruling Idaho’s laws a violation of a fundamental right and issuing an injunction. It contrived this new right through a dubious reading of American history and by flawed analogies and reasoning. The ruling entrenches a right to abortion based on a definition of health that is so elastic that even benign, common risks of pregnancy could justify an abortion. It lets doctors and patients invoke even just the possibility of suicide to allow an abortion. Underpinning all of this is that the court’s ruling undercuts the laws democratically enacted by Idaho’s legislature that protect the life of both mother and child.
A “health-preserving” (or therapeutic) abortion is one that purportedly addresses a “non-negligible risk of serious and lasting harm” to the mother. The problem is that this definition is inevitably free-floating. As the court cannot and did not enumerate an exhaustive list of conditions that would constitute this harm, the ruling would leave abortion-performing doctors to exercise “good-faith professional judgement” to determine which abortions are “medically necessary.” It’s likely that these decisions would be made quite liberally, even when other treatment options are available; the court provided the risk of infection from a cesarean section as one risk that could justify an abortion, and cites the standards of care from the American College of Obstetricians and Gynecologists as one medical authority, which holds the progressive view that abortion is “safe and essential healthcare.”
The court tried to follow Roe by defining health-preserving abortions as a fundamental but unenumerated right under the due process clause, spilling over 20 pages of ink to make the claim that the practice of exempting abortions to protect the health of the mother was deeply rooted in American history and tradition. As it turns out, this is almost entirely untrue. Most state abortion laws before the 14th Amendment’s ratification came with strict “life” exceptions — only Illinois allowed abortion for “medical or surgical purposes.” After the amendment and through the late 20th century, 42 states had “life” exceptions, and only five had “health” exceptions.
Any analogy to a long-standing tradition of the right to bodily autonomy and self-defense fails, too. To the court, under Idaho’s laws, “the woman’s body itself is conscripted into service and forced to bear permanent damage in service of the potential life she carries.” Idaho “cannot constitutionally compel a mother to suffer serious physical harm” to carry her baby to term, just as it cannot force her to donate a kidney to save her toddler’s life. “Pregnancy does not make an exception to the principle of bodily integrity.” But Idaho’s laws compel no action from the mother. They prohibit action: the killing of an innocent life.
Perhaps most worryingly, the court’s ruling allows threats of suicide to count as justification for abortion. Because Idaho laws already protect abortions to preserve a mother’s life, the argument goes, the right to have one doesn’t change if death would come from self-harm. This creates a gaping problem: It is extremely difficult to differentiate between genuine and false threats of suicide. In effect, the mere “possibility of suicide” becomes abortion on demand. For example, in California from 1967 to 1968, 86 percent of abortions were carried out due to a mental-health exemption. Today, in England and Wales, 98 percent of the 277,970 abortions conducted before the child is 24 weeks old are carried out solely to prevent “injury to the physical or mental health of the pregnant woman.” Further, it’s simply wrong to make abortion the primary treatment for suicidality in pregnant women when there are many more mental health treatments that don’t come at the expense of a baby’s life.
The shaky reasoning and destabilizing precedent-setting seems to have been acknowledged by the Ninth Circuit Court of Appeals’ granting, temporarily, that Idaho can enforce its pro-life laws while it considers a full stay on the decision. The court would be right to respect Idaho’s democratic self-determination and avoid setting a precedent that would clear the way for abortion on demand.