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NOVEMBER 4-5
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Idaho Supreme Court allows state abortion law to go into effect, while also illustrating the principle of judicial restraint

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“…what Petitioners are asking this Court to ultimately do is to declare a right to abortion under the Idaho Constitution when—on its face—there is none.”

–JUSTICE ROBYN BRODY

After a decision by the Idaho Supreme Court on Friday, the state’s longstanding ban on abortion will be allowed to go into effect.


Quick Facts


In a 3-2 decision Friday, the Idaho Supreme Court denied the request for an injunction by Planned Parenthood and other petitioners that would have stopped the enforcement of the state’s abortion ban. Justice Robyn Brody cited the Supreme Court’s overturn of Roe v. Wade, which “altered the landscape” of abortion law in the United States.

Brody’s ruling is interesting, considering the current landscape of court decisions regarding abortion laws. Judges in some states have blocked abortion restrictions citing the right to privacy as a reason to believe that petitioners would be successful in proving the laws are unconstitutional. Brody, however, cautioned against issuing injunctions unless necessary.

Citing Bonaparte v. Camden & A.R. Co., the court wrote, “There is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case, than the issuing of an injunction; it is the strong arm of equity, that never ought to be extended unless to cases of great injury.”

Brody wrote of the foreseeable injustices if a court issues an injunction when the petitioner is not likely to succeed. “Even more concerning is the reality that if a court improperly orders injunctive relief it is the court that inflicts irreparable injury for which there can be no redress.”

Brody added, “For preliminary relief to issue, Petitioners must demonstrate a substantial likelihood of success on the merits or a ‘clear right’ to the ultimate relief requested. In the post-Dobbs landscape, Petitioners cannot meet this burden and as such, are not entitled to the drastic relief they pursue.”

The Court noted that Idaho has had laws against abortion since it was a territory and before its state constitution was adopted in 1890.

“Moreover, what Petitioners are asking this Court to ultimately do is to declare a right to abortion under the Idaho Constitution when—on its face—there is none,” Brody wrote. “Petitioners offer numerous reasons why such a right should nevertheless be read into one, some, or a combination of certain sections in Article I of the Idaho Constitution. However, this is exactly why Petitioners cannot meet their burden to show a substantial likelihood of success on the merits or a ‘clear right’ to the relief request.”

Brody also ruled that the state’s Texas-style heartbeat law, which allows relatives to sue abortion providers, could also be allowed to go into effect.

Also on Friday, the Louisiana Supreme Court denied an appeal to block the state’s ban on abortion after a back-and-forth legal battle. Petitioners had argued that the law’s provisions were vague.

Louisiana Attorney General Jeff Landry tweeted that he was “pleased with the Court’s decision and will continue fighting to end this legal circus.”

The Idaho Supreme Court and Justice Brody provide an example to other state judges of the principle of judicial restraint. Unfortunately, judges across the country have been granting injunctions against state abortion laws even after the Supreme Court overturned Roe v. Wade, often citing the same faulty reasoning as Roe and Planned Parenthood v. Casey, which was also overturned by the U.S. Supreme Court.

When judges play the role of activist, they inflict a miscarriage of justice and undermine the democratic process. Take, for example, Louisiana, where not only had voters, through their elected legislators, implemented a ban on abortion, but voters had stated clearly through a ballot initiative that there is no right to an abortion in the state’s constitution. Yet after a lawsuit was filed arguing that the law was vague and could lead to arbitrary enforcement, a judge implemented an injunction. No judge should so easily overrule the clear will of the people by granting an injunction at the request of activist groups like the Center for Reproductive Rights.

Judges who grant such requests, or worse, create constitutional rights to abortion out of thin air, allow special interest groups to single-handedly shape state law rather than the voters and their elected representatives.

Leviticus 19:15 says, “‘You shall do no injustice in judgement; you shall not be partial to the poor nor defer to the great, but you are to judge your neighbor fairly.’”

Inventing a right to an abortion where one is not written in a state’s constitution is showing partiality to abortion advocates, as is granting an injunction where one is not merited. More judges should follow the caution of the Idaho Supreme Court and stop inserting themselves into the legislative process. Thankfully, due to the constitutional rulings in Idaho and Louisiana, the will of the people is being respected and the lives of more babies will be saved.


Ready to dive deeper into the intersection of faith and policy? Head over to our Theology of Politics series page where we’ve published several long-form pieces that will help Christians navigate where their faith should direct them on political issues.