What problems did the Idaho AG flag with the proposed reproductive-freedom-until-24-weeks ballot initiative?

Plain-English summary

This is the Certificate of Review for the 24-week version of the four sister Reproductive Freedom and Privacy initiatives filed simultaneously by petitioner Melanie Folwell on August 16, 2024. The other versions: fetal viability (Cert 1), 20 weeks (Cert 2), and "Abortion Under Certain Circumstances" (Cert 4).

The proposed § 39-801 in this version would (1) bar the State from infringing on abortion before 24 weeks gestation, (2) allow the State to regulate (but not entirely prohibit) abortion after 24 weeks gestation with no medical-emergency carve-out written into the initiative itself (a structural difference from Certs 1 and 2), and (3) declare a broad "right to reproductive freedom and privacy" with a fundamental-rights-style limit on State regulation.

AG Raúl Labrador's office, with Civil Litigation and Constitutional Defense Division Chief James E. M. Craig drafting, identified four substantive concerns under Idaho Code § 34-1809:

1. No privacy content. The "reproductive decisions" listed are about freedom to make decisions, not about privacy from observation or disclosure. Idaho's constitution has no explicit privacy right. Drafting fix: define what "privacy" means or drop the term.

2. Cannot bind future legislatures. Under Planned Parenthood Great Nw. v. State (Idaho 2023) and State v. Gallet (Idaho 1922), an ordinary statute (which a citizen initiative produces) cannot lock in protections against future regulation. The "compelling state interest / least restrictive means" structure attempts exactly that.

3. Silent on existing law. A "control over any other section" clause without naming which sections leaves administrators and courts guessing about how this initiative interacts with Idaho's current abortion statutes.

4. Right-to-life conflict. Idaho Code § 18-8802(1) recognizes that "preborn children have interests in life, health, and well-being." The Planned Parenthood decision traces an "inalienable right to life" framing for the unborn child to early Idaho abortion statutes. A statutory right to abortion may face state-law challenge on that basis.

What sets Cert 3 apart from Certs 1 and 2 is the absence of an EMTALA discussion: the 24-week version simply allows post-24-week regulation without limits, so there is no "medical emergency" definition to critique. (Cert 1's EMTALA inconsistency flag is not present here.) The other four core concerns track Cert 2 (the already-enriched 20-week version).

What this means for you

If you are drafting an Idaho ballot initiative on reproductive rights

Two structural problems cannot be fixed editorially:

• Bind-future-legislatures. Statutory initiatives cannot lock in fundamental-rights-style protections against later regulation. If entrenchment is your goal, you need a constitutional amendment.
• Privacy-without-privacy. Either add specific privacy rules or rebrand as a freedom measure.

Two are amenable to redrafting:

• Identify the specific Title 18 abortion statutes you intend to displace.
• Address § 18-8802(1)'s "preborn children's interests" framing head-on.

The 24-week structural choice (regulate-without-limits after 24 weeks with no medical-emergency safe harbor) is its own substantive issue. Petitioners committed to that structure should consider whether voters will understand that an emergency post-24-week procedure could face the full force of Idaho's existing post-24-week framework, since the initiative does not carve one out.

If you are an Idaho voter

The Certificate is a drafting critique, not a policy endorsement or rejection. The AG explicitly disclaimed any opinion on the policy merits.

Note that the 24-week version does not include any explicit medical-emergency exception within the initiative text. If you are evaluating which of the four sister initiatives to support, this structural difference matters: Cert 1 (fetal viability) and Cert 2 (20 weeks) write in their own medical-emergency carve-outs; Cert 3 (24 weeks) and Cert 4 (certain circumstances) handle medical exceptions differently or not at all.

If you are a reproductive rights advocate or attorney

The Cert 3 issues are the common denominator across the four sister certificates. The legal arguments here track what you would respond to in the other three. Plan response strategy on the bind-future-legislatures point first: it goes to the heart of the entrenchment goal that distinguishes a constitutional amendment from a statute.

Common questions

Q: How is this version different from the other three?
A: Each of the four sister initiatives uses a different gestational structure: Cert 1 (fetal viability + EMTALA-style medical emergency), Cert 2 (20 weeks + medical emergency), Cert 3 (24 weeks, with no internal medical-emergency carve-out), Cert 4 (no gestational threshold, but enumerated exceptions for medical, fetal nonviability, and rape/incest).

Q: What does "advisory only" mean for a Certificate of Review?
A: § 34-1809(1)(b) lets the petitioner "accept or reject" the recommendations "in whole or in part." The Certificate is not a veto: the petitioner can publish the initiative as drafted and voters can sign and vote. Unaddressed concerns become litigation risk after passage.

Q: Is the AG saying the initiative is unconstitutional?
A: The AG flags a serious risk on the bind-future-legislatures point and a concern on the right-to-life conflict, but a Certificate of Review is not a court ruling. Constitutional validity is decided by courts in actual litigation, not by the AG's pre-circulation review.

Q: What about EMTALA?
A: Cert 1 (fetal viability) raised an EMTALA inconsistency. Cert 3 (24 weeks) does not. The 24-week version does not import EMTALA's terminology into its definitions, so this concern is not present here.

Background and statutory framework

§ 34-1809 governs the AG's pre-circulation review of citizen initiatives. The review is constrained by a strict statutory timeframe and is "advisory only." The four 2024 reproductive-freedom initiatives were filed simultaneously to test different gestational structures. The legal frame across all four is set by Planned Parenthood Great Nw. v. State (Idaho 2023) (no-binding-future-legislatures, plus "preborn children's interests" framing) and § 18-8802(1).

Citations and references

Statutes:
- Idaho Code § 34-1809; § 34-1809(1)(a); § 34-1809(1)(b)
- Idaho Code § 18-8802(1)

Cases:
- Planned Parenthood Great Nw. v. State, 171 Idaho 374, 522 P.3d 1132 (2023)
- State v. Gallet, 36 Idaho 178, 209 P. 723 (1922)
- Benton v. Maryland, 395 U.S. 784 (1969)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://www.ag.idaho.gov/content/uploads/2024/10/24-93142-Response-COR.pdf

Original opinion text

September 16, 2024

VIA HAND DELIVERY
The Honorable Phil McGrane
Idaho Secretary of State
Statehouse

RE: Certificate of Review
Proposed Initiative for Adding a New Section to Title 39, Idaho Code, Providing for a Right to Reproductive Freedom and Privacy (24 weeks).

Dear Secretary of State McGrane:

An initiative petition was filed on August 16, 2024, proposing to amend title 39 of the Idaho Code. Pursuant to Idaho Code section 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 legal or constitutional issue that may present problems. This letter therefore addresses only those matters of substance that are "deemed necessary and appropriate" to address at this time and does not address or catalogue all problems of substance or of form that the proposed initiative may pose under federal or Idaho law. Idaho Code § 34-1809(1)(a). Further, 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." Id. § 34-1809(1)(b). 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.

This proposed initiative petition was submitted at the same time as three other petitions, all submitted by the same petitioner. Because each proposed initiative is similar in subject matter and intent, they will be distinguished using the following naming convention: Right to Reproductive Freedom and Privacy (fetal viability); Right to Reproductive Freedom and Privacy (24 weeks); Right to Reproductive Freedom and Privacy (20 weeks); and Right to Abortion Under Certain Circumstances.

MATTERS OF SUBSTANTIVE IMPORT

I. Summary of the Proposed Initiative

The proposed initiative seeks to add to Idaho law, by statute, a right to "reproductive freedom and privacy." The initiative proposes a new statute, section 39-801, that would significantly change abortion law in Idaho, granting a right to abortion for any reason "prior to 24 weeks gestation." Additionally, the initiative would institute a right to "reproductive freedom and privacy." Broadly speaking, the initiative would: 1) remove any restrictions on abortion before twenty-four (24) weeks gestation; 2) allow for unrestricted regulation of abortions after 24 weeks gestation; and 3) attempt to place restrictions broadly on future legislation or regulation regarding abortion and "reproductive freedom and privacy."

1. Removing Restrictions on Abortion Before 24 Weeks Gestation

The proposed initiative would alter Idaho laws by providing for a right to abortion for any reason "prior to twenty-four (24) weeks gestation." Pet. § 39-801(2). The initiative proposes a right to "reproductive freedom and privacy," which includes the right to "abortion care." Id. § 39-801(1)a. The initiative says "the state shall not infringe, burden, or prohibit abortion care prior to 24 weeks gestation." Id. § 39-801(2)a.

2. Unrestricted Regulation of Abortion After 24 Weeks Gestation

The proposed initiative would not provide for any exemption for abortions performed after 24 weeks gestation. Rather, the initiative would permit the state to regulate abortion, without limitation, after 24 weeks gestation. Pet. § 39-801(2)b.

As noted above, prior to "24 weeks gestation," the proposed initiative would allow for abortion for any reason, stating that "the state shall not infringe, burden, or prohibit abortion care prior to 24 weeks gestation." Pet. § 39-801(2)a. In the subsection immediately thereafter, the initiative states: "It shall not be a violation of the right to reproductive freedom and privacy for the state to regulate abortion care after 24 weeks gestation." Id. § 39-801(2)b. In other words, the proposed initiative sets up a framework wherein abortion 1) cannot be "prohibited" before "24 weeks gestation," 2) but can be "regulated," without restriction, after "24 weeks gestation." Id.

3. Restrictions on Future Regulation of Abortion and "Reproductive Freedom and Privacy"

In addition to the specific provisions that significantly change current abortion law in Idaho, the proposed initiative also provides for a broad "right to reproductive freedom and privacy." Pet. § 39-801(1)a. The initiative provides a non-exhaustive list of eight "reproductive decisions" included in the right to "reproductive freedom and privacy." The "reproductive decisions" the initiative lists out are decisions on:

i. Pregnancy;
ii. Contraception;
iii. Fertility Treatment;
iv. Prenatal and Postpartum care;
v. Childbirth;
vi. Continuing one's own pregnancy;
vii. Miscarriage care; and,
viii. Abortion care

Id. The initiative provides definitions for "Contraception," "Fertility Treatment," "Miscarriage care," and "Abortion care," but it does not define the other four listed "reproductive decisions." Id. § 39-801(5).

After setting forth this "right to reproductive freedom and privacy," the proposed initiative articulates limitations on the State's ability to regulate that right. The proposed initiative uses language commonly associated with fundamental constitutional rights when describing its proposed "right to reproductive freedom and privacy." See Planned Parenthood Great Nw. v. State, 171 Idaho 374, 413, 522 P.3d 1132, 1171 (2023) (citing Benton v. Maryland, 395 U.S. 784, 794 (1969) (discussing Fifth Amendment right against Double Jeopardy)). For example, the proposed initiative states that "[t]he state shall not directly or indirectly infringe ... the right to reproductive freedom ... unless justified by a compelling state interest achieved by the least restrictive means." Pet. § 39-801(2). The proposed initiative defines the appropriate "compelling interest" as regulating this right for "the purpose of improving or maintaining the health of an individual seeking care." Pet. § 39-801(3).

II. Analysis of the Proposed Initiative's Subsections

1. Subsection (1) – No Discussion of Privacy

In subsection (1) there is a lack of specificity regarding "privacy." The proposed initiative speaks of "reproductive freedom and privacy," but the non-exhaustive list of "reproductive decisions" covered by this right seems to deal entirely with freedom (freedom to make those decisions). There is nothing in subsection (1) that relates, on its face, to privacy. There is no explicit "right to privacy" contained within the Idaho Constitution, as there is in other states. Therefore, the drafters may want to include additional details as to what a "right to privacy" entails so as to avoid confusion and ambiguity.

2. Subsections (2) and (3) - Ordinary Legislation Cannot Bind Future Legislation or Regulation

The "right to reproductive freedom and privacy" set forth in the initiative would limit the State's authority to regulate abortion. Pet. § 39-801(2)-(3). However, this attempt to treat the "right to reproductive freedom and privacy" as a fundamental constitutional right and restrict future regulation of abortion violates the principle of legislative authority: ordinary statutes cannot bind or curtail the legislative authority of a future legislature. This principle was recently articulated and re-affirmed in the Idaho Supreme Court's Planned Parenthood decision. See Planned Parenthood, 171 Idaho at 452-53.

In Planned Parenthood, plaintiffs/petitioners argued that the Defense of Life & Heartbeat Acts were invalid because they conflicted with the Idaho Human Rights Act. See id. at 452-53. The Idaho Supreme Court rejected that argument because "no present legislature can bind a future legislature through ordinary legislation." Id. at 453 (citing State v. Gallet, 36 Idaho 178, 179, 209 P. 723, 724 (1922)). The Court went on to note that the legislature, therefore, "may enact any law not expressly or inferentially prohibited by the state or federal constitutions." Id. (cleaned up). The Idaho Supreme Court concluded that because the Human Rights Act was enacted as "ordinary legislation," it cannot restrict a future legislature's ability to regulate abortion, even if the Human Rights Act purported to do so (something the Court did not decide and did not need to decide).

The proposed initiative here is a proposal to amend the Idaho Code. In other words, if passed through the ballot initiative process, it would constitute "ordinary legislation." As such, the initiative cannot bind future legislatures, or a future attempt to amend the law through a future initiative petition and cannot restrict the Idaho legislature's future regulation of abortion. This squarely conflicts with the initiative, which reads: "The state shall not directly or indirectly infringe, burden, or prohibit in any way any person's voluntary exercise of the right to reproductive freedom and privacy ... unless justified by a compelling state interest achieved by the least restrictive means." Pet. § 39-801(2). Moreover, the initiative seeks to bind future legislation even further by dictating that the only compelling interest the state can consider when regulating abortion is "improving or maintaining the health of an individual seeking care." Id. § 39-801(3). Under clear Idaho Supreme Court precedent, such an attempt to restrict future legislation impermissible.

3. Subsection (4) – Does Not Specifically Address Existing Idaho Law

Subsection (4) provides that "[t]he provisions of this section are intended to control over any other section of Idaho Code and are to be liberally construed in favor of reproductive freedom and privacy." Pet. § 39-801(4). However, the initiative does not specifically address current laws in Idaho regulating abortion, which leaves open questions as to how the initiative would be incorporated into current law. For example, it is unclear what laws and definitions control when the proposed initiative is silent on an issue.

4. Potential Conflict with Right to Life

One issue that may be a concern is whether the initiative's proposed "right to reproductive freedom and privacy" conflicts with an unborn child's right to life. Within the initiative's proposed "right to reproductive freedom and privacy," there is a right to "abortion care." Id. § 39-801(1)a.viii. This right to abortion is inherently in conflict with the life of the unborn child (the "fetus"). This raises the further issue of whether the proposed right may conflict with the unborn child's right to life, and thus be declared unconstitutional.

The constitutional legal protections of an unborn child have not been expressly addressed in Idaho. But an unborn child's "inalienable right to life" was one of the earliest justifications for Idaho's early laws criminalizing abortions. See Planned Parenthood, 171 Idaho at 426 (quoting an address by Dr. J.H. Lyons from the year 1907 in which he discussed the "immorality of voluntary abortion ... based on the unborn child's 'inalienable right' to life by the 'mere fact of its existence' as a 'human being'"). Further, Idaho law also currently recognizes that "preborn children have interests in life, health, and well-being." See Idaho Code § 18-8802(1).

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 copy of this Certificate of Review, deposited in the U.S. Mail to Melanie Folwell, P.O Box 6902, Boise, ID 83702.

Sincerely,

RAÚL R. LABRADOR
Attorney General

Analysis by:
James E. M. Craig, Division Chief
Civil Litigation and Constitutional Defense