What did the Idaho Attorney General's 2016 statutory review of the proposed initiative to outlaw all abortions in Idaho as murder say about the measure's legality under then-controlling federal constitutional precedent?

Subject

The Idaho Attorney General's statutory Certificate of Review (under Idaho Code § 34-1809) of a proposed initiative that would have repealed Title 18, Chapters 5 and 6, and Section 18-4016, Idaho Code, and added a new Idaho Code § 18-6018 making it unlawful to perform, procure, or attempt an abortion and deeming any person who did so guilty of murder.

Currency note

This opinion was issued in 2016 and analyzed the proposed initiative under federal constitutional precedent that has since changed substantially. Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), overruled Roe v. Wade and Planned Parenthood v. Casey, which were the foundation of the AG's 2016 conclusion that a categorical state abortion ban would be unconstitutional. Idaho also enacted new abortion legislation after Dobbs, and that statutory framework has been the subject of ongoing federal litigation. Treat this page as historical context describing the 2016 advisory review under then-existing law, not as a current statement of constitutional or Idaho law.

Plain-English summary

Under Idaho Code § 34-1809, before any initiative petition is circulated for signatures, the Attorney General is required to review it for form and "matters of substantive import" and issue a Certificate of Review. The recommendations are advisory; petitioners are free to accept or reject them in whole or in part. The AG offers no opinion on the policy issues.

In September 2016, the Office reviewed an initiative submitted by Scott Herndon. The measure would have:

• Repealed all existing Idaho statutes that imposed criminal or civil liability or licensure sanctions on the performance of certain abortions (Title 18, chapters 5 and 6).
• Repealed Idaho Code § 18-4016, which barred murder prosecutions for the killing of an embryo or fetus in three specified circumstances.
• Enacted a new Idaho Code § 18-6018 declaring it "unlawful for any person to perform, procure, or attempt to perform an abortion," and making any person who performed or procured an abortion "guilty of murder."

The proposed definitions of "abortion," "unborn human being," and "conception" would have reached every elective abortion, including the termination of an ectopic pregnancy.

Form comments. The AG noted the new section's numbering was inconsistent: the three definitions were labeled (1) through (3), and the two substantive prohibitions were labeled (a) and (b) of subsection (3). The AG recommended placing the definitions together as paragraphs (a) through (c) under a subsection (1), and labeling the substantive prohibitions as subsections (2) and (3).

Two consistency issues. The AG flagged that:

1. The initiative was silent on Idaho Code § 18-907(3) and (4), which contained an aggravated-battery exception worded similarly to § 18-4016. Even with § 18-4016 repealed, attempted-murder prosecutions could still be possible under § 18-907 in some scenarios, citing State v. Buckley, 131 Idaho 164 (1998).
2. Proposed § 18-6018 did not specify the degree of murder. Under Idaho Code § 18-4003, murder committed in the perpetration of aggravated battery on a child under twelve is first-degree murder. It was unclear whether "child" in that statute would be construed to include an embryo or fetus.

Substantive constitutionality (under 2016 precedent). The AG concluded "[n]o dispute exists that the proposed initiative is unconstitutional under current United States Supreme Court precedent and has been so since issuance of the decision in Roe v. Wade." The opinion explained the constitutional framework as it then stood:

• Roe v. Wade, 410 U.S. 113 (1973), invalidated a Texas statute making it a crime to procure an abortion except to save the mother's life. Idaho responded within two months by replacing the abortion prohibition with a law aimed at compliance (1973 Idaho Sess. Laws 442).
• Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), introduced the "undue burden" test but reaffirmed that a woman has the right "to choose to have an abortion before viability and to obtain it without undue interference from the State."
• An outright prohibition is "[n]o more direct burden ... on access to abortion." The Ninth Circuit had already invalidated Idaho Code § 18-505 (the enforcement provision of the Pain-Capable Unborn Child Protection Act) on this reasoning, in McCormack v. Herzog, 788 F.3d 1017, 1029 (9th Cir. 2015).

Because the proposed initiative would prohibit all abortions, including those medically necessary to save a woman's life, the AG concluded that, if approved by Idaho voters, it would be unenforceable and indefensible.

Restoration concern. A footnote flagged that, under Am. Indep. Party in Idaho, Inc. v. Cenarrusa, 92 Idaho 356, 442 P.2d 766 (1968), if voters approved the initiative and a court then invalidated the new section, the repealed Title 18, chapters 5 and 6, and § 18-4016 would likely be restored, because the repeals were tied to a substitute that proved unconstitutional and the legislative intent did not clearly contemplate repeal independent of the substitute.

Common questions

Q: What is a Certificate of Review?

A statutory advisory review the Idaho Attorney General must perform on every initiative petition under Idaho Code § 34-1809, before the Secretary of State allows signature gathering. It addresses form, style, and matters of substantive import. Its recommendations are advisory and do not block the petition.

Q: Did this initiative make it onto the ballot?

The Certificate of Review is a step before signature gathering. Whether the petitioner pursued the initiative further, gathered signatures, or qualified the measure for the ballot is a separate matter that this page does not track.

Q: Does this opinion still describe Idaho's abortion law?

No. The 2016 opinion analyzed the initiative under federal constitutional precedent that has since been overruled by Dobbs v. Jackson Women's Health Organization (2022). Idaho enacted new abortion legislation after Dobbs, and the current statutory framework and ongoing litigation are outside the scope of this 2016 historical document.

Background and statutory framework

Idaho Code § 34-1809 sets up the Certificate of Review process. The Attorney General, given a strict timeframe, identifies areas of legal concern in the proposed initiative without conducting in-depth analysis. The recommendations are explicitly advisory.

The 2016 review of the Herndon initiative described above turned almost entirely on then-controlling federal constitutional law: the Roe / Casey framework limiting categorical state abortion bans, and the Ninth Circuit's application of that framework in McCormack to invalidate an existing Idaho statute. Idaho's own legislative history of responding to Roe by passing 1973 Idaho Sess. Laws 442 was cited to show the state's prior recognition of the constitutional limits.

Citations

Idaho Code:

• § 18-4003; § 18-4016; § 18-505
• § 18-601 (1948)
• § 18-907(3); § 18-907(4)
• § 34-1809

Session Laws:

• 1973 Idaho Sess. Laws 442 (S.B. No. 1184, as amended)

Federal Cases:

• Roe v. Wade, 410 U.S. 113 (1973)
• Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)
• McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015)

Idaho Cases:

• State v. Buckley, 131 Idaho 164, 953 P.2d 604 (1998)
• Am. Indep. Party in Idaho, Inc. v. Cenarrusa, 92 Idaho 356, 442 P.2d 766 (1968)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C09222016.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

September 22, 2016

The Honorable Lawerence Denney
Idaho Secretary of State
Statehouse
VIA HAND DELIVERY

RE:

Certificate of Review
Proposed Initiative Repealing Title 18, Chapters 5 and 6, and Section 18-4016, Idaho Code; Amending Title 18, Chapter 40, Idaho Code, to Prohibit Performance of Abortions as Murder

Dear Secretary of State Denney:

An initiative petition was filed with your office on September 12, 2016. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and prepared the following advisory comments. Given the strict statutory timeframe within which this office must review the petition, our review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only." The petitioners are free to "accept them in whole or in part." This office offers no opinion with regard to the policy issues raised by the proposed initiative or the potential revenue impact to the state budget from likely litigation over the initiative's validity.

BALLOT TITLE

Following the filing of the proposed initiative, this office will prepare short and long ballot titles. The ballot titles should impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure. While our office prepares titles for the initiative, petitioners may submit proposed titles for consideration. Any proposed titles should be consistent with the standard set forth above.

MATTER OF FORM

The proposed initiative is in proper legislative format for showing repealed and new statutory provisions. Its numbering of subsections in the new statutory provision, however, requires attention.

As explained below, the proposed Idaho Code § 18-6018 includes three definitions and two substantive provisions making abortions unlawful as murder. The definitions are designated as subsections (1) through (3), and the substantive provisions are designated as paragraphs (a) and (b) of subsection (3). The office recommends that, for purposes of clarity and compliance with ordinary statutory drafting conventions, consideration be given to including, in alphabetical order, the three definitions in subsection (1) as paragraphs (a) through (c) following the introductory phrase, "For purposes of this chapter:". It further recommends that the two substantive provisions be included as subsections (2) and (3).

MATTERS OF SUBSTANTIVE IMPORT

A.

Summary of Proposed Initiative

The proposed initiative repeals existing Idaho Code provisions in title 18, chapters 5 and 6, Idaho Code, that impose criminal and/or civil liability and professional licensure sanctions on the performance of some, but not all, abortions. It also repeals Idaho Code § 18-4016 that, in relevant part, precludes under three circumstances prosecution for murder for the killing of an embryo or fetus. It adds a new section, Idaho Code § 18-6018, that makes it "unlawful for any person to perform, procure, or attempt to perform an abortion" and deems any person guilty of murder "who performs or procures an abortion." Id. § 18-6018(3)(a) and (b).

Proposed § 18-6018(1) to (3) also defines several terms: "unborn human being," "conception," and "abortion." Abortion means "the use or prescription of any instrument, medicine, drug, or any other substance or device to intentionally kill an unborn human being." Unborn human being is defined in part to mean "the offspring of human beings from the moment of conception," with conception defined as "the fertilization of the ovum of a female individual by the sperm of a male individual." These definitions, with the substantive prohibitions in § 18-6018(3)(a) and (b), would prohibit all elective abortions, including termination of ectopic pregnancies.

Two issues warrant noting for clarification purposes. First, the proposed initiative is silent as to, and therefore does not affect, Idaho Code § 18-907(3) and (4). Those subsections contain an exception similarly worded to Idaho Code § 18-4016 for aggravated battery prosecutions when the battery is committed "[u]pon the person of a pregnant female, causes great bodily harm, permanent disability or permanent disfigurement to an embryo or fetus." However, prosecutions for attempted murder would be possible in some instances even if an aggravated assault prosecution would be foreclosed under § 18-907(3) and (4). See, e.g., State v. Buckley, 131 Idaho 164, 953 P.2d 604 (1998) (identifying level of intent required to prove attempted murder in the second degree). The proposed initiative's proponents may wish to consider addressing this arguable inconsistency. Second, the proposed § 18-4018 does not specify the degree of murder that accompanies performing an abortion. Idaho Code
§ 18-4003 provides that "[a]ny murder committed in the perpetration of, or attempt to perpetrate, aggravated battery on a child under twelve (12) years of age" constitutes murder in the first degree. Assuming that these circumstances otherwise exist, it is unclear whether the term "child" would be construed to include an embryo or fetus. The proposed initiative's proponents may wish to consider specifying the murder degree attendant to performing an abortion.

B.

Substantive Analysis

No dispute exists that the proposed initiative is unconstitutional under current United States Supreme Court precedent and has been so since issuance of the decision in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973). The Supreme Court invalidated there a Texas statute that made "it a crime to 'procure an abortion,' as therein defined, or to attempt one, except with respect to 'an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.'" Id. at 117-18. As the Court then added, a majority of other States, including Idaho, had statutes with a like prohibition. Id. at 118, n.2 (citing Idaho Code § 18-601 (1948)). The Idaho Legislature responded less than two months after Roe by replacing the abortion prohibition with a law aimed at complying with the decision. 1973 Idaho Sess. Laws 442 (S.B. No. 1184, as amended). In so doing, the Legislature recognized that, absent the new statutory regime, "there is an immediate danger of widespread and undesirable abortion practices within the state ...." Id. at Section 1.

The Supreme Court announced a more nuanced abortion-regulation standard, commonly referred to as the undue burden test, in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L.Ed.2d 674 (1992). Nevertheless, it reaffirmed the fundamental proposition first announced in Roe that a woman has the right "to choose to have an abortion before viability and to obtain it without undue interference from the State." Id. at 846.

No more direct burden exists on access to abortion than its outright prohibition. Indeed, the proposed initiative would preclude abortion even when medically necessary to save a woman's life or to avoid significant, permanent harm to her. The Ninth Circuit Court of Appeals thus invalidated Idaho Code § 18-505, the enforcement provision in the Pain-Capable Unborn Child Protection Act, because the statute embodied "a categorical ban on all abortions between twenty weeks gestational age and viability." McCormack v. Herzog, 788 F.3d 1017, 1029 (9th Cir. 2015). Consequently, if the proposed initiative were approved by Idaho voters, it would be unenforceable and indefensible.

CERTIFICATION

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style, and matters of substantive import. The recommendations set forth above have been communicated to the Petitioner via a copy of this Certification of Review, deposited in the U.S. Mail to Scott Herndon, 246 Otts Road, Sagle, Idaho 83860.

LAWRENCE G. WASDEN
Attorney General

Analysis by:

Clay R. Smith
Cynthia L. Yee-Wallace
Deputy Attorneys General

(Footnote: Invalidation of proposed initiative, after voter approval, would likely restore the repealed title 18, chapters 5 and 6, and section 18-6016, Idaho Code. See Am. Indep. Party in Idaho, Inc. v. Cenarrusa, 92 Idaho 356, 359, 442 P.2d 766, 769 (1968) ("When a statute by express language repeals a former statute and attempts to provide a substitute therefor, which substitute is found to be unconstitutional, the repeal of the former statute is of no effect, unless it clearly appears that the legislature intended the repeal to be effective even though the substitute statute were found invalid."). Nevertheless, the proposed initiative's proponent should recognize that, absent restoration of the repealed statutes, the legislative concern expressed at the time of the 1973 amendments to title 18, chapter 6, in the wake of Roe would become relevant.)