The first-of-its-kind lawsuit argues that states cannot force pregnant patients to sacrifice their health or their lives, even after Dobbs.
A federal district court in Idaho last month heard a groundbreaking challenge to Idaho’s total ban on abortion—which includes an exception only to prevent the death, not to protect the health of the pregnant person, making it one of the strictest criminal abortion laws in the country. The case was brought by a legal team from the Lawyering Project and Legal Voice on behalf of Dr. Stacy Seyb, a maternal fetal medicine specialist.
Seyb wishes to continue providing “abortion care to his patients with serious medical needs,” such as when “pregnancy-related complications jeopardize the pregnant person’s health” or “the embryo or fetus is diagnosed with a fatal or grave condition or miscarriage is inevitable.” Crucially, he hopes to provide this care “without fear of prosecution or professional discipline.”
Capturing what is at stake in this groundbreaking case, Syeb explains,
“Idaho’s abortion bans not only threaten healthcare providers like me with criminal prosecution, but they jeopardize the health and lives of pregnant people throughout the state. Because of these cruel laws, my patients have been forced to travel outside Idaho to obtain potentially life-saving healthcare, sometimes on an emergency basis by helicopter, further endangering their health in an already dire situation.”
Your initial reaction to this may well be, “Didn’t the Supreme Court rule in Dobbs that there is no constitutional right to an abortion, and, however, misguided it may be, if Idaho wants to privilege the life of the fetus over the health of the pregnant person, can’t it now do this?”
But read on, as Seyb’s legal team has a novel and finely-crafted legal strategy that puts this concern to rest.
Nevertheless, Idaho’s fiercely antiabortion Attorney General Raúl Labrador (who intervened in the case as a defendant) flatly insisted to the Idaho Capital Sun on the eve of trial that the matter is fully resolved by Dobbs. As he sees it, “The U.S. Supreme Court, in overturning Roe v. Wade, made clear that there is no right to abortion in the U.S. constitution, and that states have the right to determine abortion policy [and] this applies to … abortions that are done for a claimed medical reason.”
Although Seyb’s team legal team believes Dobbs was “wrongly decided,” they nonetheless recognize that the decision is legally controlling when it comes to “banning abortion generally.” Accordingly, they are not seeking to persuade the court that medically necessary abortions have somehow retained their pre-Dobbs status as constitutionally protected care as they had been prior to the overturning of Roe.
Rather, the case raises a legal question that the Supreme Court did not address in Dobbs; namely, “whether the Due Process clause of the 14th Amendment confers a right to abortion for the purpose of preserving a pregnant person’s life or health.”
To get a firsthand understanding of the legal strategy, I sat down with Wendy Heipt, a senior attorney at Legal Voice and a member of Seyb’s legal team.
Making short shrift of Labrador’s framing of the case, Heipt stressed in this “first-in-the-nation” case, Seyb’s legal team is “asking the court to recognize medically indicated abortion care as coming within the right to self-preservation.”
As she elaborated, while “Dobbs may have returned the question of pre-viability abortions to the states … it didn’t take away or even speak to the right of self-preservation and self-defense, which are very different.”
In short, the legal question they are asking is whether Idaho’s “exception [to the abortion bans] is so narrow that it crosses a different constitutional line that forces pregnant people to accept death or serious permanent harm … by the denial of needed medical care.”
Or, as senior federal district court Judge B. Lynn Winmill wrote when denying the defendants’ motion to resolve the case in their favor prior to trial, it is a line that forces “pregnant women … to sacrifice their health for the sake of the fetus—even if the fetus will, tragically, not survive past birth.”
Drawing upon a rich body of historical medical and legal evidence, Seyb’s legal team builds a compelling case that medically indicated (or therapeutic) abortion care is “a specific application of the deeply rooted rights to life and health.” In other words, it is housed in a constitutional lane that is wholly distinct from the protective lane for abortion that was established in Roe and eviscerated by Dobbs.
As Heipt underscored, like other unenumerated rights such as “to marry, procreate, raise your children,” the right to “self-preservation” is also “so fundamental … so deeply rooted in history and tradition,” that it is likewise entitled to constitutional protection under the 14th Amendment’s due process clause. Zeroing in on a pivotal point, she added, “Pregnancy is not an exception to the very rich history establishing that self-preservation in a fundamental right in this county … you don’t lose the rights to self-defense and preservation because you become pregnant.”
Heipt also addressed two lingering concerns I had about the case.
The first was whether the incremental nature of the relief being sought might forestall a campaign to repeal the antiabortion law, which, as recognized by the legal team, is the pathway to “true justice for all Idaho residents.” But as she underscored, “history has shown us that incremental wins do get us where we want to go.”
I also raised my concern that limiting the case to medically indicated abortions runs the risk of reinforcing the long-standing idea that there are “good” abortions and “bad” abortions—a duality that exists even among some who consider themselves pro-choice. Bringing us directly back to the door left open by Dobbs that this legal team has boldly walked through, Heipt gently reminded me that the case has nothing to do with creating a hierarchy of acceptable reasons for terminating a pregnancy.
“This case isn’t about abortion,” she says. “It’s about self-defense. We’re saying regardless of your situation, you have the right to defend yourself. … The abortion question is a different question.”
She also pointed out that Idaho’s Reproductive Freedom and Privacy Act ballot initiative will “go to the people in November,” and both efforts can “work in tandem,” as part of the broader struggle for people to “be able to make their own reproductive healthcare choices.”
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A note from Ms. editors: We want to hear from you for The Majority, a new campaign collecting stories about how reproductive freedom has enabled readers to build the lives they want and need. Poll after poll shows a majority of Americans support reproductive healthcare access. Yet public debate overlooks the lives shaped by abortion access, contraception, IVF, miscarriage care, maternal healthcare or comprehensive sex education—countless women who chose to pursue an education, have children, not have children, protect their health and chart their own future. Add your voice and complete the sentence: “Access to reproductive choices gave me the freedom to….” Together, these stories will help show not only why reproductive freedom remains a majority value, but also what it makes possible.
Look to these trusted groups if you or a loved one needs to know more about reliable abortion care:
- A one-stop-shop for abortion seekers: I Need An A
- Safe websites to buy abortion medication: Aid Access, Plan C Pills, Abortion Finder
- If you need help affording abortion care, contact an abortion fund near you.
- To protect your digital privacy when planning your abortion, click here.
- For free legal help as a patient or doctor, call If/When/How’s Repro Helpline: 844-868-2812
- For medical advice, contact the Miscarriage & Abortion Hotline: 833-246-2632
- If you need to know the abortion law in your state, look to the Center for Reproductive Rights.
