What problems did the Idaho AG flag with the proposed reproductive-freedom-until-20-weeks ballot initiative?

Subject

Certificate of Review on a proposed Idaho ballot initiative that would have added Idaho Code § 39-801, creating a statutory "right to reproductive freedom and privacy" with a right to abortion before 20 weeks gestation. 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.

This was one of four reproductive-rights initiatives submitted by petitioner Melanie Folwell at the same time, with different gestational thresholds (fetal viability, 20 weeks, 24 weeks, and abortion under certain circumstances). This Certificate addresses the 20-week version.

Plain-English summary

Idaho law (Idaho Code § 34-1809) requires the Attorney General to review every proposed citizen ballot initiative before it can collect signatures. The review is "advisory only" and the petitioner is free to accept or reject any of the recommendations. The AG does not pass on policy, only on form, drafting, and legal/constitutional concerns.

This Certificate covers the 20-week version of the proposed Reproductive Freedom and Privacy initiative. The proposed § 39-801 would have done three things: (1) removed restrictions on abortion before 20 weeks gestation; (2) exempted from criminal liability any abortions "necessary to protect or maintain the physical health or life of the pregnant person"; and (3) declared a broad "right to reproductive freedom and privacy" covering eight types of reproductive decisions, with a fundamental-rights-style limitation on state regulation.

The Certificate flagged four issues:

1. No actual privacy content. The text talks about "reproductive freedom and privacy" but the eight enumerated "reproductive decisions" are about freedom (decisions to do things), not privacy (limits on what others can know or share). The Idaho Constitution has no explicit right to privacy. The AG suggested adding language defining what "privacy" means in the initiative.

2. Ordinary legislation cannot bind future legislatures. The proposed section would limit the State's authority to regulate abortion and would constrain future legislative responses unless those responses were "narrowly tailored" to a "compelling state interest" of "improving or maintaining the health of an individual seeking care." Under Planned Parenthood Great Nw. v. State, 171 Idaho 374 (2023), the Idaho Supreme Court reaffirmed (citing State v. Gallet, 36 Idaho 178 (1922)) that "no present legislature can bind a future legislature through ordinary legislation." A citizen initiative produces ordinary legislation, not constitutional text. So the structural limit on future regulation cannot work as the initiative drafts it.

3. Doesn't address existing Idaho abortion law. The initiative's "control over any other section" clause leaves open how it integrates with Idaho's current statutory framework. The AG flagged this as creating uncertainty about what governs in cases the initiative is silent on.

4. Right-to-life conflict. Idaho Code § 18-8802(1) declares that "preborn children have interests in life, health, and well-being." The Planned Parenthood decision discusses early Idaho law's recognition of the unborn child's "inalienable right to life." The Certificate flags that a statutory right to abortion may conflict with these recognized state interests, raising constitutional vulnerability if challenged.

The four issues are drafting concerns under § 34-1809, not policy objections. The AG explicitly stated: "This office offers no opinion with regard to the policy issues raised by the proposed initiative."

What this means for you

If you are an Idaho ballot initiative drafter or petitioner

The Certificate identifies two structural problems that ordinary editorial revisions cannot fix:

• The bind-future-legislatures problem. Any version of this initiative that purports to constrain future state regulation hits the Planned Parenthood / Gallet limitation. The only way around it is a constitutional amendment, not a statutory initiative. If your goal is to entrench reproductive rights against future legislative repeal, statutory initiative is the wrong vehicle.
• The privacy-without-privacy-content problem. Either define what "privacy" means and add specific privacy-protective rules (limits on data sharing, on disclosure to law enforcement, on participation by parents in minor decisions), or drop "privacy" from the title and frame the initiative as a "reproductive freedom" measure. Carrying "and privacy" without content is a litigation hook.

The integration-with-existing-law and right-to-life-conflict points are more amenable to drafting. Identify the specific Idaho Code sections you intend to displace and address them explicitly. Address the § 18-8802(1) "preborn children's interests" framing head-on rather than ignoring it.

If you are an Idaho voter

The AG's review is not an endorsement or rejection of legalizing abortion. It identifies legal concerns with the specific text. A voter who supports the policy goal and a voter who opposes it can both want the text fixed before it goes to the ballot, because a flawed text invites court challenges and may not actually deliver what voters thought they were approving.

If you are an Idaho legislator

This Certificate is a useful preview of the legal terrain if any version of this initiative reaches the ballot and passes. Three flash points to watch: (1) how a court applies Planned Parenthood / Gallet to provisions purporting to constrain future regulation, (2) the unresolved interaction with Idaho Code § 18-8802(1), and (3) the absence of an explicit Idaho constitutional privacy right (unlike, e.g., California, Florida, Montana). Any policy response should account for these.

If you are a reproductive rights advocate or attorney

The Certificate is the cleanest published statement of the AG's drafting objections. Two takeaways: (1) the privacy framing needs specific privacy-protective content if the initiative is to track its title; (2) the binding-future-legislatures structure needs to be reframed (likely as a directive on existing statutes rather than as an entrenchment) or addressed via constitutional amendment. Note that nothing in the Certificate addresses whether abortion before 20 weeks should or should not be legal; the AG explicitly disclaimed any policy view.

If you are an Idaho secretary of state election official

Under § 34-1809, the petitioner can revise and resubmit (the December 2024 re-submission is the same petitioner returning with a fetal-viability version), proceed to ballot title preparation on the original text, or withdraw. This Certificate triggered a revise-and-resubmit cycle that produced a separately reviewed text in late 2024.

Common questions

Q: Did the AG block the abortion initiative?
A: No. The Certificate of Review process under § 34-1809 cannot block an initiative. It only delivers advisory comments. The petitioner can accept or reject any recommendation.

Q: What is the difference between a 20-week version and a fetal-viability version?
A: The 20-week version sets a specific numerical threshold (20 weeks gestation) before which abortion is unrestricted. The fetal-viability version uses a medical standard (the point at which the fetus has a significant likelihood of sustained survival outside the uterus). The fetal-viability version was re-submitted by the same petitioner in November 2024 and reviewed in a separate Certificate dated December 20, 2024.

Q: What is the "ordinary legislation cannot bind future legislatures" rule?
A: Established in State v. Gallet, 36 Idaho 178 (1922), and reaffirmed in Planned Parenthood Great Nw. v. State, 171 Idaho 374 (2023): a statute passed by one legislature does not constrain what a later legislature can do. A future legislature can repeal or amend it. So a statute that says "no future law may regulate X" is unenforceable on its face. Constitutional amendments can constrain future legislatures; statutes cannot.

Q: Can a citizen initiative produce a constitutional amendment?
A: In Idaho, citizen initiatives produce statutes, not constitutional amendments. Idaho's Constitution can only be amended by the legislature proposing an amendment that voters then ratify (Idaho Const. art. XX). Citizens cannot directly amend the Idaho Constitution by initiative.

Q: Does Idaho Code § 18-8802(1) ban abortion?
A: § 18-8802(1) is a legislative finding declaring that "preborn children have interests in life, health, and well-being." It is not the operative criminal statute. Idaho's actual abortion criminal provisions are elsewhere in title 18 and have been the subject of separate litigation, including Planned Parenthood Great Nw. v. State.

Q: Is the Certificate of Review the same as a court ruling?
A: No. The Certificate is the AG's advisory pre-circulation review. It carries no binding effect, no precedential weight, and cannot prevent signature collection. It identifies concerns the AG sees in the text. Whether those concerns hold up is for courts to decide if the initiative passes and is challenged.

Q: What happened to this initiative after the Certificate?
A: The petitioner revised the proposed text and re-submitted in November 2024 with a fetal-viability threshold (rather than the 20-week threshold here). A separate Certificate of Review was issued on December 20, 2024.

Background and statutory framework

Idaho's citizen initiative process runs through Idaho Code §§ 34-1801 through 34-1822. Section 34-1809 governs Attorney General review. Within a strict statutory window after a petition is filed, the AG must issue a Certificate of Review identifying "matters of substantive import." Section 34-1809(1)(a) limits the review to those matters "deemed necessary and appropriate" to address; § 34-1809(1)(b) makes the recommendations "advisory only," and petitioners are free to "accept or reject them in whole or in part."

The doctrine that "no present legislature can bind a future legislature through ordinary legislation" comes from State v. Gallet, 36 Idaho 178 (1922) and was reaffirmed by the Idaho Supreme Court in 2023 in Planned Parenthood Great Nw. v. State, 171 Idaho 374. The Planned Parenthood Court held that the Idaho Human Rights Act, as ordinary legislation, could not restrict a future legislature's regulation of abortion even if the IHRA arguably purported to do so.

Idaho Code § 18-8802(1) appears in title 18 chapter 88 and contains the legislative declaration recognizing "preborn children have interests in life, health, and well-being."

Citations and references

Idaho statutes:
- Idaho Code § 34-1809, Certificate of Review process; advisory-only recommendations
- Idaho Code § 18-8802(1): legislative declaration on preborn children's interests

Idaho Constitution:
- No explicit right to privacy in the Idaho Constitution (referenced as a contrast point)

Cases:
- Planned Parenthood Great Nw. v. State, 171 Idaho 374, 522 P.3d 1132 (2023), "no present legislature can bind a future legislature through ordinary legislation"
- State v. Gallet, 36 Idaho 178, 209 P. 723 (1922), original articulation of the bind-future rule
- Benton v. Maryland, 395 U.S. 784 (1969), fundamental-rights framing referenced contextually

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://www.ag.idaho.gov/content/uploads/2024/10/24-93141-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 (20 weeks). 1

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.

1 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.

Secretary of State McGrane
September 16, 2024
Page 2

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 20 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 (20) weeks gestation; 2) exempt from criminal liability any abortions
“necessary to protect or maintain the physical health or life of the pregnant person;” 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 20 Weeks Gestation
The proposed initiative would alter Idaho law by providing for a right to abortion for
any reason “prior to twenty (20) weeks gestation.” Pet. § 39-801(2). The initiative proposes a
right to “reproductive freedom and privacy,” which includes the right to “abortion care.” 2 Id.
§ 39-801(1)a. The initiative says “the state shall not infringe, burden, or prohibit abortion care
prior to 20 weeks gestation.” Id. § 39-801(2)a.
2. Exemption for Abortions “Necessary to Protect or Maintain Health”
The proposed initiative would also change current Idaho law regarding abortion by
providing for an exemption from criminal liability for abortions performed when “necessary
to protect or maintain the physical health or life of the pregnant person.” Pet. § 39-801(2)b.
The initiative does not define what it means to “protect or maintain the physical health or life
of the pregnant person.” Id.
This exemption for abortions performed when “necessary to protect or maintain the
physical health or life of the pregnant person” kicks in after “20 weeks gestation.” In short,
the proposed initiative would set up a framework wherein abortion 1) cannot be “prohibited”
before “20 weeks gestation,” 2) can be “regulated” after “20 weeks gestation,” and 3) can never
be “regulated” or prohibited in cases where abortion is “necessary to protect or maintain the
physical health or life of the pregnant person.” 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 “right to reproductive freedom and privacy.”
Pet. § 39-801(1)a. The initiative provides a non-exhaustive list of eight “reproductive
2 The proposed initiative defines “abortion care” synonymously with “abortion.”

Pet. § 39-801(5)a.

Secretary of State McGrane
September 16, 2024
Page 3

decisions” included in the right to “reproductive freedom and privacy.” The “reproductive
decisions” the initiative lists out are decisions on:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.

Pregnancy;
Contraception;
Fertility Treatment;
Prenatal and Postpartum care;
Childbirth;
Continuing one’s own pregnancy;
Miscarriage care; and,
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.” Id. § 39-801(3).
II.

Analysis of the Proposed Initiative’s Subsections

The matters of substantive import are addressed below, with each of the pertinent
substantive subsections discussed in turn.
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.

Secretary of State McGrane
September 16, 2024
Page 4
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.

Secretary of State McGrane
September 16, 2024
Page 5
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