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.

Practice Pointers.

  1. Most Idaho practitioners have long known to lead with textual arguments. They should continue to do so.
  2. Starting in 2019, the Court has demonstrated an interest in corpus linguistics in cases like State v. Lantis, State v. Burke, and State v. Gomez-Alas. In rough terms, corpus linguistics is a linguistic methodology where courts or practitioners analyze the meanings of words at a specific time based on the context of linguistic usage patterns. The Court did not rely on corpus linguistics here, but the Court’s interest in that methodology in other cases is similar to the majority’s interest in original meaning here.
  3. Originalism has different flavors. In Reading Law: The Interpretation of Legal Texts, Justice Scalia and Professor Bryan Garner explained that originalism can include an examination of: (1) original meaning, which considers how text “would have [been] understood at the time of adoption according to then-prevailing linguistic meanings and interpretative principles,” and (2) original intent, which considers “[t]he subjective intention of the framers or ratifiers of a legal instrument.” Justice Scalia and Professor Garner viewed original meaning as a preferable, objective test. They described original intent as a subjective test that “as applied to the product of a collective body almost always denotes a legal fiction, and when not that, an unascertainable reality.”
  4. The majority purported to examine original meaning, but it appears that the majority at times instead considered original intent. For example, the majority wrote: (1) the Court’s “primary object is to determine the intent of the framers,” (2) “our duty is to faithfully interpret the Idaho Constitution through the framers’ intent,” and (3) “our objective is to ‘derive the intent’ of those that adopted the provision.” Further, the majority did not considering what specific words in Article I, Section 1 actually meant; for example, it declined “to adopt an ever-expanding interpretation of the word liberty.” The majority instead considered whether a non-exhaustive list of rights was implicitly intended to include abortion. If the majority was considering original intent instead of original meaning, then there is a tension between the majority’s use of original and textualism. For a textualist, the text is the paramount concern. The focus is on the text’s meaning (which could be the present meaning or the original meaning), not the drafters’ intent. But by seemingly considering original intent, the majority turned that paradigm on its head by placing primacy on the drafters’ intent over the text’s meaning.
  5. The potential tension between the majority’s application of textualism and originalism may lead a practitioner to ask: should I lead with the text’s meaning or the drafters’ intent? Like the Court itself did, we recommend continuing to lead with the text. But the savvy Idaho practitioner should consider also making arguments about original meaning and original intent. Those arguments may help win key votes. To do so, practitioners may need to look at less common sources of authority like territorial law, historical news publications, and records from Idaho’s Constitutional Convention. The Legislative Research Library can be an invaluable resource for such research.