Idaho Judge Expands Abortion Access; Attorney General Appeals Ruling

Here’s how it’s supposed to work in this country, at least the last time I checked. You and your neighbors vote for legislators. Those legislators pass laws. The laws reflect what the people want. Pretty simple, right? Apparently not simple enough for Judge B. Lynn Winmill.

On Aug. 13, Winmill decided that Idaho’s abortion laws, passed by the people’s elected representatives, needed a little editing from the bench. He ruled the state can’t enforce its abortion bans when a continued pregnancy threatens a woman’s physical health or could result in death from self-harm. The case was brought by Dr. Stacy Seyb, a Boise maternal-fetal medicine specialist who says the laws kept him from caring for high-risk patients. Winmill sided with Seyb on two of three claims. On the third, fatal fetal anomalies, he let the state’s ban stand.

United States District Court for the District of Idaho (Public domain) via Wikimedia Commons

Now, I have some questions. When did one federal judge get to sit down with a red pen and start crossing out lines in a law that the people of Idaho put on the books through their elected legislature? The Supreme Court in Dobbs v. Jackson Women’s Health Organization said, plain as day, that abortion policy belongs to the people and their elected state representatives, not the judiciary. That’s not my interpretation. That’s what the highest court in the land ruled. So what part of “not the judiciary” was unclear?

Idaho Attorney General Raúl Labrador asked the same thing. His office filed a notice of appeal to the 9th Circuit Court of Appeals and an emergency motion to pause Winmill’s ruling from taking effect while the appeal plays out. In a statement, Labrador said Winmill “replaced Idaho’s law with his own abortion standard” and declared “a novel constitutional right to abortion” that nobody voted for. His opening brief is due Nov. 10.

Good for him. Somebody needed to stand up and say the quiet part out loud: we have a process in this country, and a robe and a gavel don’t cancel out the will of the voters.

[2] (Public domain) via Wikimedia Commons

Naturally, the other side is clutching its pearls. Stephanie Toti, executive director of the Lawyering Project, which represented Seyb, called Labrador’s appeal an “utter disregard for the health and welfare of pregnant Idaho residents.” Bless her heart. The same people who spent fifty years telling us that nine unelected justices in Washington should set abortion policy for all fifty states are now suddenly horrified that a state’s elected attorney general wants to defend a law his own legislature passed. The whiplash alone ought to require a neck brace.

Here’s what I can see with my own eyes. Idaho passed a law. A judge struck parts of it down. The attorney general appealed. That’s not a crisis. That’s the system working, even if the system has to work overtime because federal judges keep forgetting which branch of government they’re in.

JJonahJackalope (CC BY-SA 3.0) via Wikimedia Commons

Labrador’s office has been down this road before. He’s appealed multiple district court rulings on Idaho’s abortion laws to the 9th Circuit, with mixed results, including the fight over the Biden DOJ’s emergency abortion care lawsuit that went all the way to the Supreme Court. He keeps showing up. He keeps filing. He keeps fighting for the law the people of Idaho actually voted for. That’s what the job is.

The people of Idaho didn’t ask Judge Winmill to rewrite their laws for them. They asked their legislature, and their legislature listened. If folks in black robes can just override that whenever they feel like it, then the whole business of voting is a charade and we might as well stay home on Election Day. But that’s not how it works, and somebody needs to remind the bench of that. Labrador just did.