Could a 1995 Idaho ballot initiative criminalize all abortions performed once a fetal heartbeat or brain stem activity could be detected, with mandatory capital punishment for any violation?

Plain-English summary

The petitioner Liberty of Conscience filed a "Definition of Life" initiative on September 18, 1995. Proposed Idaho Code § 18-616 would have defined "life" as "either brain stem activity, or a heart beat in a human being," and proposed § 18-619 would have criminalized any abortion performed once those signs were present, with mandatory capital punishment treated as "premeditated murder" not subject to plea bargain.

Deputy AG Margaret R. Hughes, writing for AG Alan G. Lance, identified two fatal constitutional problems.

First, the initiative would have banned many previability abortions, which the U.S. Supreme Court had held unconstitutional. Roe v. Wade, 410 U.S. 113 (1973) established a fundamental right to terminate a pregnancy. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) reaffirmed Roe's essential holding while replacing the trimester framework with an "undue burden" test: the state may regulate abortion before viability so long as the regulation does not place "a substantial obstacle in the path of a woman seeking an abortion." A fetal heartbeat is detectable as early as the 32nd day of fetal development, well before viability (which the opinion noted could be as early as 21 weeks). Banning abortions from heartbeat onward would impose exactly the substantial obstacle Casey forbids.

Second, the initiative purported to define life "for the purpose of protection by the State of Idaho under the Constitution of the United States, and the Constitution of the State of Idaho." If the petitioners intended to amend the federal or state constitution, they could not do so through Idaho's initiative process. The federal Constitution can only be amended through Article V's procedures (proposal by two-thirds of Congress or a constitutional convention, ratification by three-fourths of the states). The Idaho Constitution can be amended only through the procedure in Article 20, section 1 (legislative proposal followed by majority vote of the people on a constitutional amendment), not by initiative legislation. Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943) established the equal-footing rule: initiative legislation has the same force as legislative acts and the same constitutional limits.

The mandatory capital-punishment provisions raised additional problems the opinion did not need to reach in detail given the prior constitutional defects.

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.

Particular note for current readers: The federal abortion-rights framework changed substantially after this 1995 opinion. The U.S. Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization overruled Roe v. Wade and Planned Parenthood v. Casey, so the constitutional analysis the AG used here is no longer the governing federal standard. Researchers should consult current federal and Idaho law before relying on any specific rule cited here.

Common questions

What was the difference between the Roe trimester framework and Casey's undue burden test?

Roe split pregnancy into three trimesters. In the first, almost no government regulation was permitted. In the second, regulation to protect maternal health was permitted but not regulation aimed at fetal life. In the third (when the fetus was viable), abortion could be largely prohibited so long as exceptions were made for the life and health of the mother. Casey replaced this with the "undue burden" test: states could regulate abortion to further their interest in potential life or maternal health throughout pregnancy, so long as the regulation did not place a substantial obstacle in the path of a woman seeking an abortion before viability.

Why was the heartbeat trigger problematic under Casey?

Because viability occurred (as of 1995 medical practice) no earlier than around 21 weeks of gestation, while a fetal heartbeat is detectable as early as the 32nd day. A heartbeat-based ban would have prohibited abortions from approximately week 5 through week 21 of pregnancy — a period entirely before viability. Casey's undue-burden test forbids substantial obstacles in that previability window, and a categorical ban is the paradigmatic substantial obstacle.

Could an initiative amend the Idaho Constitution?

No. Idaho Constitution Article 20, section 1 specifies the procedure: a proposed amendment must be approved by two-thirds of each house of the legislature and then ratified by a majority of the people voting at the next general election. The initiative process is not one of the listed methods. Initiative legislation can pass new statutes (with the equal force of legislative enactments under Luker v. Curtis), but those statutes are still subject to constitutional review and cannot themselves alter constitutional text.

What about the capital-punishment provisions?

The proposed § 18-619 mandated capital punishment for any abortion violating § 18-616, and required courts to treat any violation as "premeditated murder" not subject to plea bargain. The opinion did not need to dwell on these provisions because the underlying ban was unconstitutional, but they raised independent issues: the mandatory-capital-punishment requirement would conflict with Idaho's general prosecutorial discretion framework and with Eighth Amendment precedent on mandatory capital sentencing schemes.

How does Dobbs affect the analysis today?

Dobbs v. Jackson Women's Health Organization (2022) overruled Roe and Casey, eliminating the federal constitutional right to abortion the AG was relying on in 1995. Under the post-Dobbs framework, federal constitutional law no longer prevents states from banning abortion. State law and any state constitutional provisions now govern. This 1995 opinion's analysis under federal law no longer reflects current federal abortion-rights doctrine; researchers should consult Idaho's current statutes and case law for the present legal status of any specific abortion regulation in Idaho.

Background and statutory framework

Idaho's certificate-of-review process under Idaho Code § 34-1809 lets the AG flag legal problems with proposed initiatives before signature collection. The 1995 abortion initiative was one of several initiatives filed in fall 1995 (others addressed sales tax, volunteer militia organizations, and more) and was reviewed under the same advisory framework.

The federal abortion-rights doctrine applicable in 1995 came from Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). Casey was a relatively recent decision at the time, having reaffirmed Roe's core holding while replacing the trimester analysis with the "undue burden" test. The opinion's analysis tracked Casey closely, treating viability as the line beyond which the state could prohibit abortion (with maternal-life-or-health exceptions) and applying the substantial-obstacle test to previability regulation.

Citations

• U.S. Const. art. V; Idaho Const. art. 20, § 1
• Idaho Code §§ 18-616, 18-619 (both proposed); § 34-1809
• Roe v. Wade, 410 U.S. 113 (1973)
• Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
• Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C101395_c.pdf

Original opinion text

October 13, 1995
Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED
Re: Certificate of Review; Initiative Entitled "Definition of Life"

Dear Mr. Cenarrusa:

An initiative petition entitled "Definition of Life" was filed with your office on September 18, 1995. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments.

MATTERS OF SUBSTANTIVE IMPORT

The proposed initiative would amend title 18, chapter 6 of the criminal code, the "Abortion and Contraceptives" chapter, and prohibit the taking of any life. "Life" is defined in section 18-616 of the proposed initiative as consisting of "either brain stem activity, or [a] heart beat in a human being." Thus, the effect of this proposed initiative is to criminalize abortion where there is either brain stem activity or a detectable heartbeat in the fetus. Section 18-619 of the proposed initiative provides for a penalty of capital punishment.

The proposed initiative violates the United States Constitution. The United States Supreme Court held in Roe v. Wade, 410 U.S. 113 (1973), that a woman has a fundamental right to terminate a pregnancy.

In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the United States Supreme Court reaffirmed the essential holding of Roe. The Court 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." 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 the health of the mother."

The proposed initiative prohibits an abortion if brain stem activity or a heartbeat is detectable in the fetus. This restriction clearly prohibits some previability abortions. Survival as early as 21 weeks gestational age is possible. However, viability does not reach back to when brain stem activity or a heartbeat is initially detectable. For example, a heartbeat can occur as early as the 32nd day of fetal development. This proposed initiative, by bringing within its ban previability abortions, 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.

The proposed initiative defines life "for the purpose of protection by the State of Idaho under the Constitution of the United States, and the Constitution of the State of Idaho . . . ." If it is the intent of the proponents of this proposed initiative to either amend or modify the federal or state constitutions, this goal cannot be accomplished through Idaho's initiative process. The federal Constitution can only be amended at a national level. See U.S. Const. art. V. Likewise, the state constitution cannot be amended through the initiative process. Initiated legislation is on equal footing with legislation enacted by the state, and it does not carry the legal weight of a constitutional provision. Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943). The procedure for amending the state constitution is set forth in article 20, section 1 of the Idaho Constitution, which does not include the option of amending by initiative.

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 petitioner, Liberty of Conscience.

Yours very truly,
ALAN G. LANCE
ATTORNEY GENERAL

Analysis by:
MARGARET R. HUGHES
Deputy Attorney General
Civil Litigation Division