Could Idaho voters pass a 1995 initiative that banned all abortions after 13 weeks of pregnancy, given the U.S. Supreme Court's 1992 Casey decision?

Plain-English summary

John and Teri Slack filed an initiative petition with the Secretary of State on June 26, 1995, called the "Protection from Late Term Abortion Act." The proposal would have added new sections to Idaho Code Title 18, Chapter 6 (the existing "Abortion and Contraceptives" chapter). The headline rule: no abortion would be permitted after the first 13 weeks of prenatal development, except to "save the life of the child's mother." The proposal listed several specific procedures it would prohibit (dismemberment, chemical poisoning, dilation and extraction with brain suction) and provided that the woman herself was not guilty of violating the act. It allowed the woman or "father" to seek money damages from the medical abortion provider, including treble the cost of the abortion as statutory damages, even if the woman had consented.

Deputy AG Margaret Hughes of the Civil Litigation Division, writing for AG Alan Lance, flagged the initiative as unconstitutional under Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). Casey was the Supreme Court's 1992 confirmation of Roe v. Wade's core holding that a woman has a constitutional right to choose abortion before fetal viability. Casey rejected Roe's trimester framework but installed an "undue burden" test: a state may regulate previability abortion to further its interest in fetal life or maternal health, but may not place a "substantial obstacle" in the path of a woman seeking an abortion before viability.

The Idaho proposal failed both halves of Casey. First, viability is generally not reached until 21 weeks at the earliest (per Webster), so the 13-week cutoff banned a substantial swath of previability abortion. An outright ban on previability abortion is, by definition, a "substantial obstacle." The opinion cited Sojourner T. v. Edwards (5th Cir. 1992) (Louisiana ban on previability abortion struck down) and Jane L. v. Bangerter (D. Utah 1992) (Utah statute's ban before 21 weeks struck down) as recent applications.

Second, even if the initiative were narrowed to apply only at or after viability, it still lacked a health-of-the-mother exception. Casey requires that postviability abortion bans permit abortion "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." The Idaho proposal had a life exception but not a health exception. That gap alone would have invalidated the postviability portion.

The opinion also footnoted (without endorsing) that single-procedure bans, like the Ohio law focused on dilation-and-extraction, raised separate constitutional questions under Planned Parenthood of Central Missouri v. Danforth. The Idaho proposal was broader than a single-procedure ban; it was a comprehensive ban after 13 weeks.

The certificate's editor's note records that the petitioners later resubmitted a revised initiative, that the AG issued ballot titles, that the titles were challenged, and that the titles were modified following the Idaho Supreme Court's decision in Buchin v. Lance, No. 22395, 1995 WL 757770 (Idaho Dec. 22, 1995).

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Important post-2022 update: The U.S. Supreme Court overruled Roe and Casey in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022). The constitutional framework this opinion analyzed (Casey's "undue burden" test for previability abortion regulation) is no longer the federal standard. Modern abortion regulation in Idaho is governed by post-Dobbs Idaho statutes and any applicable Idaho constitutional provisions. Treat the constitutional analysis in this 1995 certificate as historical only.

Common questions

What was the legal problem with a 13-week cutoff specifically?

Viability marks the constitutional dividing line under Casey. A fetus is viable when there is "a realistic possibility of maintaining and nourishing a life outside the womb," which the medical literature placed at roughly 21-24 weeks gestational age in 1995. Webster v. Reproductive Health Services upheld a Missouri statute that "create[d] what [was] essentially a presumption of viability at 20 weeks." A 13-week cutoff was firmly in the previability zone, where Casey forbade outright bans.

What does "undue burden" mean?

It is the standard the Supreme Court set in Casey for evaluating restrictions on previability abortion. A regulation imposes an undue burden if its "purpose or effect" is to place "a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Some restrictions are permissible (informed consent, waiting periods, recordkeeping). Outright bans on previability abortion are not. After viability, the state may ban abortion entirely, but only with exceptions for the woman's life and health.

Why does the opinion mention damages?

Section 18-620 of the proposed initiative gave the woman or "father" a private right of action for money damages against the medical abortion provider, including treble the cost of the abortion as statutory damages. The damages provision applied "even if [a] party consented to the performance of an abortion." The AG's opinion did not analyze the damages provision separately, but private causes of action against abortion providers (later seen in Texas SB 8 in 2021) raise distinct standing and procedural questions.

What happened to the initiative?

The footnote on the first page records that the petitioners resubmitted a revised initiative after this certificate, the AG issued long and short ballot titles, the titles were challenged, and the titles were modified following the Idaho Supreme Court's decision in Buchin v. Lance (Dec. 22, 1995). The substantive constitutional defects flagged in the certificate were the petitioners' problem to fix, and they could only be fixed by either narrowing the ban to viability or adding a health exception, both significant departures from the original draft.

Why is the historical context important here?

Because abortion law has moved significantly since 1995. Roe and Casey were both overruled in Dobbs (2022). Idaho enacted comprehensive abortion restrictions before and after Dobbs. The constitutional analysis in this certificate is no longer the controlling federal framework. Researchers should treat the certificate as a snapshot of pre-Dobbs initiative review, not as a guide to what state-level abortion legislation can or cannot do today.

Background and statutory framework

Idaho Code § 34-1809 requires the AG to issue a certificate of review on every initiative petition filed with the Secretary of State, within a strict statutory timeframe. The certificate addresses ballot title, form, style, and substantive import. The AG's recommendations are advisory; petitioners may accept or reject them.

In 1995, the controlling federal framework for abortion was Roe v. Wade (1973) as modified by Casey (1992). Roe had used a trimester framework with strict scrutiny in the first trimester, regulation permitted in the second to protect the mother's health, and bans permitted in the third subject to life-and-health exceptions. Casey collapsed that into the "undue burden" test for previability and continued life-and-health exceptions for postviability. Webster (1989) had earlier upheld Missouri's 20-week presumption of viability.

Idaho Code Title 18, Chapter 6, contained Idaho's pre-existing abortion statutes in 1995. The proposed initiative would have added new sections 18-616 through 18-620 to that chapter. The substantive defects identified in the certificate were Casey-based: the previability ban and the missing health exception.

Citations

• Idaho Code § 34-1809
• Roe v. Wade, 410 U.S. 113 (1973)
• Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
• Webster v. Reproductive Health Services, 492 U.S. 490 (1989)
• Eisenstadt v. Baird, 405 U.S. 438 (1972)
• Sojourner T. v. Edwards, 974 F.2d 27 (5th Cir. 1992)
• Jane L. v. Bangerter, 809 F. Supp. 865 (D. Utah 1992)
• Buchin v. Lance, No. 22395, 1995 WL 757770 (Idaho Dec. 22, 1995)
• Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C071995.pdf

Original opinion text

July 19, 1995
The Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED
Re:

Certificate of Review
Initiative Entitled “Protection From Late Term Abortion Act”*

Dear Mr. Cenarrusa:
An initiative petition entitled “Protection From Late Term Abortion Act” was filed
with your office on June 26, 1995. Pursuant to Idaho Code § 34-1809, this office has
reviewed the petition and has prepared the following advisory comments. Under the
review statute, the Attorney General’s recommendations are “advisory only,” and the
petitioners are free to “accept or reject them in whole or in part.”
BALLOT TITLE
Following the filing of the proposed initiative, our office will prepare a short and
long ballot title. The ballot title should impartially and straightforwardly state the
purpose of the measure without being argumentative and without creating prejudice for
or against the measure. If petitioners would like to propose language with these
standards in mind, we would recommend that they do so. Their proposed language will
be considered, but our office is responsible for preparing the title.
MATTERS OF SUBSTANTIVE IMPORT
Section 18-616 of the proposed initiative would amend title 18, chapter 6 of the
criminal code, the “Abortion and Contraceptives” chapter, and prohibit abortions beyond
the “first thirteen weeks of prenatal development,” except those necessary “to save the
life of the child’s mother.” The proposed initiative goes on in section 18-617 to detail
some of the specific abortion methods prohibited, although this list of proscribed methods
does not purport to be exhaustive:
Section 18-617. PROCEDURES COMMONLY PRACTICED TO
CAUSE WILLFUL DEATH PROHIBITED FOR PRENATAL
CHILDREN OVER THE AGE OF 13 WEEKS. The people find that
procedures used in later term abortions cause suffering and pain in the
* Following the issuance of this Certificate of Review, the petitioners resubmitted a revised
initiative. Pursuant to Idaho Code § 34-1809, the Attorney General issued long and short ballot titles.
These ballot titles were challenged and were modified as a result of Buchin v. Lance, No. 22395, 1995
WL 757770 (Idaho Dec. 22, 1995).

unborn which is inhumane. The prohibition provided by this Chapter shall
apply to the following procedures only after 13 weeks of gestation,
including but not limited to the following abortion procedures:
(a) dismemberment of the prenatal child’s body, or (b) chemically burning
or poisoning the prenatal child, or (c) the partial delivery of a prenatal child
for the purpose of removing, by incision through the skull, followed by
suction, the child’s brain from his or her skull, otherwise known as brain
suction abortion (dilation and extraction).
The initiative further provides that an attending physician must determine whether “the
life of a child falls within or beyond his or her first thirteen weeks of prenatal
development.” Section 18-619 then states that a woman “upon whom any abortion is
performed” is not guilty of violating the act and, under section 18-620, she or the “father”
may seek “money damages” from the “medical abortion provider.” Such damages are
“for all injuries, psychological and physical, occasioned by a violation of [the] section” as
well as “statutory damages equal to three times the cost of the abortion.” Damages are
available “even if [a] party consented to the performance of an abortion.” In short then,
under this proposed initiative, all second and third trimester abortions are legally
prohibited unless carrying the unborn child to term would endanger the mother’s life, and
if a second or third trimester abortion is performed, money damages may be sought from
the doctor by the parents of the aborted fetus. This proposed initiative, by legally
prohibiting previability abortions that take place beyond the thirteenth week of prenatal
development, violates the Federal Constitution as construed by the United States
Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.
833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992).
Abortion is one of the most divisive issues this country has faced. To those who
are “pro-choice,” what is at stake is “the right of an individual, married or single to be
free from unwarranted government intrusion into matters so fundamentally affecting a
person as the decision to bear or beget a child.” Eisenstadt v. Baird, 405 U.S. 438, 453,
92 S. Ct. 1029, 1038, 31 L. Ed. 2d 349 (1972). For those who are “pro-life,” the balance
is different and the “government intrusion” warranted. For them, legalizing abortion is
simply authorizing adults, with the approval of the law, to take the lives of children not
yet born and thus incapable of defending themselves.
Layered on top of this conflict is the additional question of which is the proper
branch of government to resolve the issue—the judiciary or the legislature. Those in
favor of a judicial resolution argue that a “woman’s right to reproductive choice” is a
“fundamental liberty” that cannot “be left to the whims of an election.” Casey, 112 S. Ct.
at 2854 (Blackmun, J., concurring). Therefore, it is the responsibility of the courts to
protect that right. But, this view is not universally shared, and the judiciary’s willingness
to enter into the abortion fray has also been criticized as exhalting the role of the
judiciary over the democratic process and prolonging the abortion controversy:

[B]y foreclosing all democratic outlet for the deep passions this issue
arouses, by banishing the issue from the political forum that gives all
participants, even the losers, the satisfaction of a fair hearing and an honest
fight, by continuing the imposition of a rigid national rule instead of
allowing for regional differences, the Court merely prolongs and intensifies
the anguish.
We should get out of this area, where we have no right to be, and
where we do neither ourselves nor the country any good by remaining.
Casey, 112 S. Ct. at 2885 (Scalia, J., dissenting).
The United States Supreme Court first took on the abortion issue in Roe v. Wade,
410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 143 (1973). In that opinion, the Court held that
a woman has a fundamental right to terminate a pregnancy and established what has been
characterized as a “trimester approach” to govern the regulation of abortion. Almost no
regulation was permitted during the first trimester of pregnancy. Regulation designed to
protect the woman’s health, but not to further the state’s interest in potential life, were
permitted during the second trimester. Finally, during the third trimester, when the fetus
was viable, certain abortion prohibitions were permitted so long as they did not
jeopardize the life or health of the mother. Roe, 410 U.S. at 163-66.
Roe was followed by widespread criticism, and by 1990, there was some
expectation that it would be overruled. Subsequent Supreme Court opinions seemed to
erode Roe’s basic holding and, in particular, when the decision in Webster v.
Reproductive Health Services, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410 (1989),
was issued, there no longer appeared to be five justices on the Court who supported the
Roe decision. Thus, when the Court granted certiorari in Planned Parenthood of
Southeastern Pennsylvania v. Casey, Roe’s days appeared to be numbered.
Such was not the case. Justices O’Connor and Kennedy changed their positions
from Webster, and the Court, in a five-to-four ruling, reaffirmed a woman’s
constitutional right to have an abortion before the fetus reaches viability. There were,
however, some modifications to the Roe decision. The Court rejected Roe’s trimester
construct, reasoning that its “rigid prohibition on all previability regulation aimed at the
protection of fetal life . . . undervalue[d] the State’s interest in potential life. . . .” Casey,
112 S. Ct. at 2818. The Court instead adopted a new “undue burden” test. Under this
test, a state may regulate abortion to further its interest in potential life or to foster the
health of the mother so long as the “purpose or effect” of the regulation is not to place “a
substantial obstacle in the path of a woman seeking an abortion before the fetus attains
viability.” Id. (citation omitted). Once the fetus is viable, the state may proscribe
abortion “except where it is necessary, in appropriate medical judgment, for the
preservation of the life or health of the mother.” Id. at 2821. Obviously, there are many

who disagree with the Casey decision. But, unless it is overruled, it remains the law and
must be followed.
The proposed initiative prohibits abortions beyond the thirteenth week of prenatal
development. In so doing, it is proscribing some previability abortions. Viability
constitutes the point at which “there is a realistic possibility of maintaining and
nourishing a life outside the womb . . . .” Casey, 112 S. Ct. at 2817. Survival as early as
21 weeks gestational age is possible, and the Supreme Court has upheld a statute which
“create[d] what [was] essentially a presumption of viability at 20 weeks.” Webster, 109
S. Ct. at 3055. However, viability does not reach back to the thirteenth week of
pregnancy, and this proposed initiative, by prohibiting abortions beyond the thirteenth
week of prenatal development, brings within its ban some previability abortions. An
outright ban on previability abortions clearly violates Casey’s mandate that the state not
place a “substantial obstacle” in the path of a woman seeking an abortion “before the
fetus” attains viability. See Sojourner T. v. Edwards, 974 F.2d 27 (5th Cir. 1992)
(Louisiana statute prohibiting previability abortions is unconstitutional under Casey);
Jane L. v. Bangerter, 809 F. Supp. 865 (D. Utah 1992) (Utah statute, insofar as it banned
previability abortions before 21 weeks gestational age, held unconstitutional under
Casey). Consequently, the proposed initiative, as applied to previability abortions,
appears unconstitutional.1
The next question is whether the proposed initiative’s prohibition could apply to
abortions performed when the fetus is viable. As noted, under Casey, a state may
proscribe abortion once the unborn child is viable “except where it is necessary, in
appropriate medical judgment, for the preservation of the life or health of the mother.”
Casey, 112 S. Ct. at 2821. The proposed initiative provides an exception to its
prohibition to “save the life of the child’s mother.” It does not provide any exception
where the mother’s health is endangered. Because the mother’s health is not taken into
account, the proposed initiative may also be too restrictive even as to abortions
performed on a viable fetus.
I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style
and matters of substantive import and that the recommendations set forth above have
been communicated to petitioners John and Teri Slack by deposit in the U.S. Mail of a
copy of this certificate of review.
1 The Ohio House and Senate recently approved a bill prohibiting one abortion procedure—the
dilation and extraction procedure. The proposed initiative, here, appears to ban all abortion procedures
after the thirteenth week of prenatal development. Since this office is not now reviewing an initiative
prohibiting only one particular abortion procedure, this office offers no opinion as to the constitutionality
of such a prohibition. However, the proponents of this proposed initiative may want to be aware that
there is case law, issued prior to Casey, indicating that particular abortion procedures cannot be prohibited
if the risk to the woman’s health is thereby increased. See, e.g., Planned Parenthood of Central Missouri
v. Danforth, 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976).

Yours very truly,
ALAN G. LANCE
Attorney General
Analysis by:
MARGARET R. HUGHES
Deputy Attorney General
Civil Litigation Division