Idaho Supreme Court’s abortion ruling isn’t originalist. It’s based only on tradition | Opinion
The Idaho Supreme Court’s recent opinion upholding the state’s restrictive abortion laws begins with a promise to interpret the state’s constitution based on the “plain and ordinary meaning of its text.” But the court’s reasoning has almost nothing to do with the text. Instead, the court looks to Idaho’s history and tradition and equates constitutional meaning with historical practices alone.
This approach is not “originalist” — at least, not in the way that conservative judges, justices, and scholars use the term. Mainstream originalism seeks out the original meaning of the Constitution’s text. An older version of originalism (widely rejected as hopelessly unimplementable) sought out the intent of the Constitution’s framers.
The Idaho Supreme Court claims to look to “original intent,” stating that the “primary object” of interpretation is “to determine the intent of the framers.” But despite its lip service to the constitution’s text and original intent, the Court doesn’t analyze the constitution’s meaning or framers’ intent. Instead, it defines the constitution’s meaning by reference to little more than historic laws and practices. As the court tells it, from Idaho’s founding onward, the state outlawed abortion in almost all circumstances. The court also cites evidence of historical publications and medical opinions reflecting this legal treatment. For the court, this is enough to conclude that there is no constitutional right to abortion. The text is a secondary consideration at best.
As it turns out, Idaho’s constitution contains more support for a right to abortion than the United States Constitution. The Dobbs case focused solely on the Due Process Clause of the Fourteenth Amendment, which prohibits the deprivation of “life, liberty, or property without due process of law.” Idaho’s constitution includes a similar clause at Article I, Section 13, as well as even broader language in Article I, Section 1, which guarantees “certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing, and protecting property; pursuing happiness and securing safety.”
As a matter of textual analysis, this makes a stronger case for abortion rights than the challengers had in Dobbs. The broad language of Article I, Section 1, in addition to the due process clause of Section 13, supports a greater level of protection to fundamental rights than would exist under a due-process-only regime. Indeed, Article I, Section 1 reads as an acknowledgment of future progress. That section’s “among which” qualification recognizes that there may be inalienable rights that the framers do not yet realize.
This reading makes sense if one hopes to attribute even a modicum of humility and perspective to the framers. Idaho’s constitution was ratified less than three decades after the end of the Civil War. Longstanding institutions of slavery had been swept away. The US Constitution had taken on dramatic new scope and meaning just over two decades before, with the ratification of the Thirteenth, Fourteenth and Fifteenth Amendments.
The Idaho Supreme Court’s opinion refuses to grapple with the tough questions of text and intent. Instead, the court equates the aspirational, open-ended language of the constitution with the outmoded practices of those in the late nineteenth century. And make no mistake — the court chose to take this approach. One need only look to Justice Zahn’s dissent to find examples of the same court recognizing that the constitution’s meaning can change over time. By taking the restrictive history and tradition approach, the court guaranteed the result.