A federal district court in Idaho last month heard a groundbreaking challenge to Idaho’s total ban on abortion—which includes an exception only to prevent the death, not to protect the health of the pregnant person, making it one of the strictest criminal abortion laws in the country. The case was brought by a legal team from the Lawyering Project and Legal Voice on behalf of Dr. Stacy Seyb, a maternal fetal medicine specialist.

Seyb’s legal team has a novel and finely-crafted legal strategy that puts this concern to rest.

Nevertheless, Idaho’s fiercely antiabortion Attorney General Raúl Labrador (who intervened in the case as a defendant) flatly insisted to the Idaho Capital Sun on the eve of trial that the matter is fully resolved by Dobbs. As he sees it, “The U.S. Supreme Court, in overturning Roe v. Wade, made clear that there is no right to abortion in the U.S. constitution, and that states have the right to determine abortion policy [and] this applies to … abortions that are done for a claimed medical reason.” 

…the case raises a legal question that the Supreme Court did not address in Dobbs; namely, “whether the Due Process clause of the 14th Amendment confers a right to abortion for the purpose of preserving a pregnant person’s life or health.”

In short, the legal question they are asking is whether Idaho’s “exception [to the abortion bans] is so narrow that it crosses a different constitutional line that forces pregnant people to accept death or serious permanent harm … by the denial of needed medical care.”

Or, as senior federal district court Judge B. Lynn Winmill wrote when denying the defendants’ motion to resolve the case in their favor prior to trial, it is a line that forces “pregnant women … to sacrifice their health for the sake of the fetus—even if the fetus will, tragically, not survive past birth.” 

Drawing upon a rich body of historical medical and legal evidence, Seyb’s legal team builds a compelling case that medically indicated (or therapeutic) abortion care is “a specific application of the deeply rooted rights to life and health.” In other words, it is housed in a constitutional lane that is wholly distinct from the protective lane for abortion that was established in Roe and eviscerated by Dobbs.

As Heipt underscored, like other unenumerated rights such as “to marry, procreate, raise your children,” the right to “self-preservation” is also “so fundamental … so deeply rooted in history and tradition,” that it is likewise entitled to constitutional protection under the 14th Amendment’s due process clause. Zeroing in on a pivotal point, she added, “Pregnancy is not an exception to the very rich history establishing that self-preservation in a fundamental right in this county … you don’t lose the rights to self-defense and preservation because you become pregnant.”