Last Thursday, the same day that the South Carolina supreme court unpersuasively held, by a 3-2 vote, that the state’s heartbeat law violates the state constitution, the Idaho supreme court, by the same 3-2 margin, soundly held that abortion is not a fundamental right under the Idaho constitution. Justice Robyn Brody wrote the majority opinion, which Chief Justice Richard Bevan and Justice Gregory Moeller joined. Justices John Stegner and Colleen Zahn each wrote a dissent (with Stegner also joining Zahn’s dissent).

Here is an excerpt from Justice Brody’s summary of her majority opinion:

[W]e cannot read a fundamental right to abortion into the text of the Idaho Constitution. Since Idaho attained statehood in 1890, this Court has repeatedly and steadfastly interpreted the Idaho Constitution based on the plain and ordinary meaning of its text, as intended by those who framed and adopted the provision at issue. That is our duty as the judicial branch: to sustain the rule of law—not to promote our personal policy preferences. If we were to jettison that disciplined approach, even in the face of a uniquely emotional and politically divisive policy issue, the Idaho Constitution would no longer be the voice of the people of Idaho— it would be effectively replaced by the voice of a select few sitting on this Court….
[F]or us to read a fundamental right into the Idaho Constitution, we must examine whether the alleged right is so “deeply rooted” in the traditions and history of Idaho at the time of statehood that we can fairly conclude that the framers and adopters of the Inalienable Rights Clause intended to implicitly protect that right.
When we apply that test to this dispute, there simply is no support for a conclusion that a right to abortion was “deeply rooted” at the time the Inalienable Rights Clause was adopted. Nothing in the territorial laws of Idaho, the record of the 1889 constitutional convention, the surrounding common law and statutes, the surrounding publications of the times, or Idaho’s medical regulations at that time show abortion was viewed as a right entitled to heightened protection from the legislature’s regulatory power. To the contrary, the relevant history and traditions of Idaho show abortion was viewed as an immoral act and treated as a crime. Thus, we cannot conclude the framers and adopters of the Inalienable Rights Clause intended to implicitly protect abortion as a fundamental right.