What problems did the Idaho AG flag with the re-submitted reproductive-freedom-until-fetal-viability ballot initiative?

Subject

Certificate of Review on a re-submitted Idaho ballot initiative that would have added Idaho Code § 39-803, creating a statutory "right to reproductive freedom and privacy" with a right to abortion until "fetal viability" and a separate "right of privacy in making personal decisions about reproductive health care in consultation with a health care provider." This is the November 2024 re-submission of an earlier initiative reviewed by the AG on September 16, 2024. AG Raúl Labrador's office identified four substantive concerns under Idaho Code § 34-1809.

Plain-English summary

Idaho's Attorney General reviews every proposed citizen ballot initiative under Idaho Code § 34-1809. The review is "advisory only," and the petitioner may accept or reject any recommendation. The AG addresses drafting and legal concerns; it does not pass on policy.

This is a re-submitted version of an initiative the same petitioner first filed in August 2024. The earlier version was reviewed on September 16, 2024 (a 20-week-gestation threshold). The re-submitted version uses a "fetal viability" threshold and adds a separate "right to privacy in making personal decisions about reproductive health care in consultation with a health care provider."

The re-submitted text would do four things: (1) bar regulation of abortion before fetal viability; (2) exempt from criminal liability any abortion in a "medical emergency"; (3) create a "right of privacy" in reproductive health decisions made in consultation with a provider; and (4) limit future state regulation by ordinary statute.

The Certificate flagged four issues:

1. Vague privacy clause and conflict with parental rights. The added subsection (2)b creates a "right of privacy in making personal decisions about reproductive health care in consultation with a health care provider," but does not define the privacy right or specify whether it covers minors making decisions without parental involvement. Read broadly, that could conflict with parents' fundamental due process right to direct their children's medical care under Troxel v. Granville, 530 U.S. 57 (2000), and Idaho Code § 32-1015(2). The Idaho Constitution has no explicit right to privacy.

2. Ordinary legislation cannot bind future legislatures. As with the earlier version, the re-submitted text would constrain future state regulation through "narrowly tailored" / "least restrictive means" language. Under Planned Parenthood Great Nw. v. State, 171 Idaho 374 (2023), and the older State v. Gallet, 36 Idaho 178 (1922), ordinary legislation (including a citizen-initiative statute) cannot bind a future legislature. So the structural limit on future regulation would not be enforceable.

3. No integration with existing Idaho abortion law. The "control over any other section" language leaves open how the proposed § 39-803 interacts with Idaho's existing statutory framework. The AG repeated the recommendation to address this explicitly.

4. Right-to-life conflict. As before, Idaho Code § 18-8802(1)'s declaration that "preborn children have interests in life, health, and well-being" raises a potential constitutional conflict with a statutory right to abortion.

The Certificate notes that the petitioner addressed some defects from the September version (definitions for additional reproductive decisions; replacement of the 20-week threshold with fetal viability; tightened medical emergency language). The structural problems (binding future legislatures; integration with existing law; right-to-life conflict) carried over. The new privacy/parental-rights tension is unique to this re-submitted version.

What this means for you

If you are an Idaho ballot initiative drafter or petitioner

Three of the four flagged issues are repeats from September. Two of those (binding future legislatures; right-to-life conflict at § 18-8802(1)) are structural and not solvable by minor edits. The third (integration with existing law) is solvable by enumerating the specific statutes the initiative intends to displace.

The new fourth issue (the privacy/parental-rights conflict) is solvable, but only if you decide who gets to decide for minors. Two clean fixes:

• Option A: explicitly exclude minors from the right of privacy. Add a clause stating the privacy right does not displace existing parental authority or Idaho Code § 32-1015(2). This avoids the Troxel conflict but constrains the initiative.
• Option B: explicitly include minors and accept the litigation. Be aware that Troxel and Idaho § 32-1015(2) create a strong prior framework for parental rights, and the privacy clause would face direct legal challenge.

Either option makes the initiative more legally robust than the current ambiguous text.

If you are an Idaho voter

The differences between this version and the September 2024 version matter. This re-submitted text uses fetal viability as the threshold (a medical standard) instead of a fixed week count. It also adds a privacy-of-care-decisions clause. Both changes have downstream consequences. Read the actual initiative text, not just the title, before deciding.

If you are a parent or parental rights advocate

The Certificate is the cleanest published statement of how Idaho's existing parental rights framework (Idaho Const. due process protections under Troxel and the explicit statutory framework at Idaho Code § 32-1015(2)) interacts with the proposed privacy clause. If you have concerns about minors making reproductive health care decisions without parental involvement, the Certificate identifies a potential litigation path under Troxel.

If you are a reproductive rights advocate or attorney

The petitioner addressed several drafting concerns from the September version. The remaining issues are well-known to constitutional litigators:

• Binding future legislatures by ordinary statute is structurally impossible. If the goal is to entrench reproductive rights, this is the wrong vehicle. Either accept that future legislatures can repeal or modify, or pursue a constitutional amendment.
• The right-to-life framing in § 18-8802(1) is a legislative finding, not the operative criminal prohibition. Its effect on a court's interpretation is uncertain.
• The privacy-of-decisions clause needs minor-treatment language one way or the other.

If you are an Idaho secretary of state election official

The pattern of revise-and-resubmit is contemplated by § 34-1809. After this December 2024 Certificate, the petitioner can revise again, proceed to ballot title preparation, or withdraw.

Common questions

Q: How is this different from the September 2024 version?
A: This re-submitted version uses "fetal viability" as the gestational threshold instead of "20 weeks," provides definitions for additional listed reproductive decisions, refines the medical-emergency language, and adds a separate "right of privacy in making personal decisions about reproductive health care in consultation with a health care provider."

Q: What is "fetal viability" in this context?
A: The proposed § 39-803(5)d defines it as "the point in a pregnancy when the fetus has a significant likelihood of sustained survival outside of the uterus without extraordinary medical measures." The AG flagged that several embedded terms ("significant likelihood," "extraordinary medical measures") are themselves undefined.

Q: Why does the AG bring up Troxel v. Granville?
A: Troxel is the U.S. Supreme Court case establishing that parents have a fundamental due process right to make decisions about their children's care, custody, and control. Idaho's parental rights statute, § 32-1015(2), tracks Troxel for medical care decisions specifically. A privacy clause that lets minors make reproductive health decisions without parental involvement would directly conflict with this framework, raising constitutional vulnerability.

Q: Could a court strike down only the privacy clause and keep the rest of the initiative?
A: Possibly. Whether a court severs an unconstitutional provision depends on whether the rest of the act can stand alone and whether the legislature would have enacted the rest without the offending provision. The proposed initiative does not contain an explicit severability clause as the AG quoted it.

Q: If passed, when would this initiative take effect?
A: Idaho citizen initiatives typically take effect on a specific date set by the initiative or by the default rules in Idaho Code § 34-1813. The proposed text does not specify an effective date as the AG quoted it; default rules would govern.

Q: Is there any version of this initiative the AG would not flag for review?
A: § 34-1809 requires the AG to review every initiative and identify "matters of substantive import." Even a well-drafted initiative would receive a Certificate, just with fewer concerns. The Certificate is process, not approval.

Background and statutory framework

Idaho Code § 34-1809 governs the Certificate of Review process. Petitioners may revise and resubmit, which restarts the review clock. This re-submitted Certificate is the second of multiple AG reviews requested by the same petitioner on substantially similar reproductive rights initiatives.

The "ordinary legislation cannot bind future legislatures" doctrine traces to State v. Gallet, 36 Idaho 178 (1922), and was reaffirmed in Planned Parenthood Great Nw. v. State, 171 Idaho 374 (2023). Constitutional amendments can constrain future legislatures; statutes cannot.

Parental rights as a fundamental due process interest were established at the federal level in Troxel v. Granville, 530 U.S. 57 (2000). Idaho codified parallel protections in Idaho Code § 32-1015(2): "Parents have the fundamental right and duty to make decisions concerning the furnishing of health care services to the minor child."

Citations and references

Idaho statutes:
- Idaho Code § 34-1809, Certificate of Review process
- Idaho Code § 32-1015(2), parental fundamental right to make medical care decisions for a minor child
- Idaho Code § 18-8802(1): legislative declaration on preborn children's interests

Cases:
- Planned Parenthood Great Nw. v. State, 171 Idaho 374, 522 P.3d 1132 (2023), ordinary legislation cannot bind future legislatures
- 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
- Troxel v. Granville, 530 U.S. 57 (2000), fundamental parental due process right

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://www.ag.idaho.gov/content/uploads/2024/12/24-94555-Response-COR.pdf

Original opinion text

December 20, 2024
VIA HAND DELIVERY
The Honorable Phil McGrane
Idaho Secretary of State
Statehouse
RE:

Certificate of Review
Re-submitted Proposed Initiative for Adding a New Section to Title 39,
Idaho Code, Providing for a Right to Reproductive Freedom and Privacy.

Dear Secretary of State McGrane:
An initiative petition that was previously submitted on August 15, 2024, has
been re-submitted on November 21, 2024, still proposing to amend title 39 of the
Idaho Code, with some revisions to the original submission. Pursuant to Idaho Code
§ 34-1809, this office has reviewed the re-submitted 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.

Secretary of State McGrane
December 20, 2024
Page 2
MATTERS OF SUBSTANTIVE IMPORT
I.

Summary and History of Re-submission of Proposed Initiative

As noted above, this proposed initiative is a re-submission of a previously submitted proposed initiative. This office reviewed the previously submitted initiative—
identified as “Right to Reproductive Freedom and Privacy (fetal viability)”—and provided a certificate of review with advisory comments on September 16, 2024. Thereafter, the petitioners revised the proposed initiative and then submitted it and requested the assignment of ballot titles on October 7, 2024. This office responded on
October 22, 2024, in accordance with Idaho Code § 34-1809 and provided a short and
a long ballot title for the proposed initiative. Petitioners now submit the proposed
initiative, effectively re-starting the process, beginning again with the certificate of
review. A summary and section by section analysis of the new proposed initiative
follows.
The proposed initiative seeks to add to Idaho law, by statute, a right to “reproductive freedom and privacy.” Broadly speaking, the initiative would: 1) remove any
restrictions on abortion before the point of “fetal viability;” 2) exempt from criminal
liability any abortion performed in the case of a “medical emergency;” 3) create a
“right of privacy in making personal decisions about reproductive health care in consultation with a health care provider;” and 4) attempt to place restrictions broadly on
future legislation or regulation regarding abortion and “reproductive freedom and
privacy.”
1. “Statement of Purpose”
The proposed initiative’s “statement of purpose” sets forth petitioners’ general
view of the proposed initiative: that it “recognizes that reproductive health care
choices…are deeply private matters that should be decided by a person in consultation with their health care provider.” Pet. § 39-802. And relatedly, that “[t]he act supports a person’s right to reproductive freedom and privacy…and secures a person’s
right to make their own health care decisions without government interference.” Id.
2. Removing Restrictions on Abortion Before “Fetal Viability”
The proposed initiative would alter Idaho laws by providing a right to abortion
for any reason “up to fetal viability.” Pet. §39-803(1). The initiative defines “fetal viability” as “the point in a pregnancy when…the fetus has a significant likelihood of
sustained survival outside of the uterus without extraordinary medical measures.”
Id. § 39-803(5)d. Terms within this definition, such as “significant likelihood of sustained survival” or “extraordinary medical measures” are not defined.

Secretary of State McGrane
December 20, 2024
Page 3
3. Exemption for Abortions Performed for “Medical Emergencies”
The proposed initiative would also change current Idaho law regarding abortion by providing for an exemption from criminal liability for abortions performed “in
medical emergencies.” Id. § 39-803(1). The initiative defines a “medical emergency,”
as a physical medical condition warranting abortion to save the pregnant person’s
life, avoid placing the pregnant person’s health “in serious jeopardy;” avoid “serious
impairment to a bodily function,” or avoid serious dysfunction of any bodily organ or
part.” Id. at § 39-803(5)(g).
This exemption for abortions performed “in medical emergencies” kicks in after
“fetal viability.” In short, the proposed initiative sets up a framework wherein abortion 1) cannot be “regulated” before “fetal viability,” 2) can be “regulated” after “fetal
viability,” and 3) can never be “regulated” or prohibited in cases of “medical emergencies,” as defined by the initiative, regardless of whether it is before or after fetal viability.
4. Restrictions on Future Regulation of Abortion and “Reproductive
Freedom and Privacy”
In addition to the specific provisions that change current abortion law in Idaho,
the proposed initiative also provides for a broad “right to reproductive freedom and
privacy.” Pet. § 39-803(2)a. The initiative provides a non-exhaustive list of six “reproductive 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.

Abortion;
Childbirth care;
Contraception;
Fertility treatment;
Miscarriage care; and
Prenatal, pregnancy, and postpartum care.

Id. The initiative provides definitions for all of the above-listed “reproductive decisions.” Id. § 39-803(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, 414, 522 P.3d
1132, 1172 (2023) (citing Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23
L.Ed.2d 707 (1969) (discussing Fifth Amendment right against Double Jeopardy)).
For example, the proposed initiative states that “[t]he right to reproductive freedom

Secretary of State McGrane
December 20, 2024
Page 4
and privacy shall not be burdened, interfered with, discriminated against, deprived,
or prohibited by the state…unless such state action is narrowly tailored to improve
or maintain the health of the person seeking reproductive care through the least restrictive means.” Pet. § 39-803(2)c.
The proposed initiative also creates a proposed “right to privacy in making personal decisions about reproductive health care in consultation with a health care provider.” Id. § 39-803(2)b. This “right of privacy” is not described any further.
5. “Financial Obligation” Statement
The proposed initiative includes a provision stating: “[t]his act does not create
a financial obligation on the state, its agencies, or their programs to pay for, fund, or
subsidize the reproductive health care protected by this act.” Id. § 39-803(4)(b). In
their letter included with the proposed initiative, the petitioners requested that an
“official fiscal impact statement for the Initiative from the Division of Financial Management be issued to reflect the” information in the financial obligation statement.
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 (2)b – No Discussion of “Privacy” and Potential Conflict

with Fundamental Rights Protected by the Idaho and U.S. Constitutions

In subsection (2)b there is a lack of specificity regarding “privacy.” The proposed initiative speaks of “a right of privacy,” but the non-exhaustive list of “reproductive decisions” in subsection (2)a seems to deal entirely with freedom (freedom to
make those decisions).
Further, the “right of privacy in making personal decisions about reproductive
health care in consultation with a health care provider” in subsection (2)b is vague
and unclear in its meaning. Depending on how broadly it is interpreted, a right to
privacy in making personal decisions about reproductive health care could conflict
with fundamental rights recognized by the U.S. Supreme Court. For example, if this
right of privacy in making personal decisions about reproductive health care is interpreted as including a right for minor children to make their own reproductive health
care decisions without the involvement or consent of their parents, it would likely
conflict with the parents’ fundamental right to make health care decisions for their
children. See, e.g, Troxel v. Granville, 530 U.S. 57, 66 (2000) (“[I]t cannot now be
doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control
of their children.”); Idaho Code § 32-1015(2) (“Parents have the fundamental right

Secretary of State McGrane
December 20, 2024
Page 5
and duty to make decisions concerning the furnishing of health care services to the
minor child.”) To the extent this “right to privacy in making personal health care
decisions” conflicts with fundamental rights protected by the U.S. and Idaho Constitutions, it could be found to be unconstitutional.
Notably, there is no explicit “right to privacy” contained within the Idaho Constitution, as there is in other states, where the “right to privacy” is often interpreted
expansively by their courts.
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 attempt to limit the State’s authority to regulate abortion and the other rights
included within the right to reproductive freedom and privacy. Pet. § 39-803(2)-(3).
However, this attempt to treat the “right to reproductive freedom and privacy” as a
fundamental 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.”
Planned Parenthood, 171 Idaho at 453 (citing State v. Gallet, 36 Idaho 178, 179
(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 right to reproductive freedom and privacy shall not be burdened, interfered with, discriminated against, deprived, or prohibited by the
state…unless such state action is narrowly tailored…through the least restrictive
means.” Pet. §39-803(2)c. Moreover, the initiative seeks to bind future legislation
even further by dictating that state regulation is only permissible if it is “narrowly

Secretary of State McGrane
December 20, 2024
Page 6
tailored to improve or maintain the health of the person seeking reproductive health
care.” Id. Under clear Idaho Supreme Court precedent, such an attempt to restrict
future legislation is impermissible.
3. Subsection (4) – Does Not Specifically Address Existing Idaho Law

Subsection (4) provides that “[t]he provisions of this act are to be liberally construed in favor of reproductive freedom and privacy and are intended to control over
any other section of Idaho Code.” Pet. § 39-803(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.” Id. §39-803(1). 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).

Secretary of State McGrane
December 20, 2024
Page 7
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