Federal appeals court upholds Idaho’s penalties amid legal challenge to state’s abortion ban

A federal appeals court panel ruled on Friday that Idaho’s abortion ban may continue to be fully enforced, including against a Boise doctor who challenged the ban’s lack of health exemption. 

A U.S. Court of Appeals for the Ninth Circuit panel ruled 2-1 to continue to block a lower court’s decision that would have prevented prosecution of maternal-fetal medicine specialist Dr. Stacy Seyb if he performed abortions in which he determined there were serious risks to the mother’s health or mental health. 

Idaho’s laws prohibit most abortions, except in cases to prevent the death of the mother or in cases of rape and incest in the first trimester with a police report. Doctors face felony penalties and civil lawsuits of a minimum of $20,000 if they perform the procedure outside those exemptions.

Seyb’s challenge, which argued Idaho’s abortion ban’s lack of exemptions to prevent serious harm to the mother’s health or death from self-harm were unconstitutional, will continue to be litigated in court. 

Ninth Circuit Judges Kim McLane Wardlaw and Consuelo Callahan said in the majority opinion that Seyb’s argument for a constitutional right to abortion as a health-saving measure or in cases of risk of self-harm were unlikely to align with the U.S. Supreme Court’s 2022 Dobbs decision, which overturned Roe v. Wade. 

“We think it unlikely that Dr. Seyb will be able to square the district court’s perspective on the history and tradition concerning abortions with the Supreme Court’s perspective in Dobbs,” Callahan wrote. “… Idaho has a strong interest in limiting abortions to those allowed under its law. This interest clearly outweighs the potential harm to Dr. Seyb of having to abide by Idaho’s law pending the resolution of this appeal.” 

Judge Marsha S. Berzon disagreed, writing that the high court’s decision only applied to elective abortions, and not when the procedure may be medically necessary or indicated. 

Berzon agreed with district court Judge B. Lynn Winmill, whose previous order argued there was likely a “fundamental right” to abortions to preserve the mother’s health. Berzon also argued that the risk of harm for Seyb’s patients was greater than that of the state’s. 

“… with the stay imposed by the majority in place, some women with serious pregnancy complications will during the pendency of this appeal be required to continue their pregnancies at serious, permanent risk to their health,” Berzon wrote. “The risk, absent the injunction, to Dr. Seyb’s pregnant patients of serious and lasting harm short of death is definitionally a risk of irreparable injury.” 

The conservative Christian advocacy group the Idaho Family Policy Center, which helped author Idaho’s abortion ban allowing civil lawsuits against doctors, celebrated Friday’s decision in a press release. 

“Pregnant mothers don’t have a constitutional right to abortion merely because they threaten to harm themselves,” Idaho Family Policy Center Blaine Conzatti said in the release. “Women in mental health crises need treatment, not abortion. This decision ensures that our pro-life laws here in Idaho will continue protecting both mother and baby.”