A federal appeals court on Friday gave Idaho the go-ahead to enforce its near-total abortion ban in pregnancy-related cases, while it appeals a lower court order that had required the state to permit abortions when a pregnancy threatened a woman’s health.
The lower court had ruled in favor of Dr. Stacy Seyb, in a challenge he brought under Seyb v. Members of the Idaho Board of Medicine, where he argued the laws left him exposed to prosecution for providing care he judged medically necessary to avoid serious harm to patients.
Seyb, a maternal-fetal medicine specialist at St. Luke’s Health System in Boise, treats high-risk pregnancies, pressed that abortion should be legally performed by doctors when a pregnancy posed a risk of serious and lasting harm to a woman’s health, including the risk of death from self-harm.
That go-ahead has now been suspended while the appeal proceeds.
Disagreeing on Friday, Judge Consuelo M. Callahan, appointed by Republican President George W. Bush in 2003, and Judge Kim McLane Wardlaw, appointed by Democrat Bill Clinton in 1998, gave the two votes while Judge Marsha S. Berzon, appointed by Democratic President Bill Clinton in 2000, dissented.
With the new order in place, doctors in Idaho again now face the risk of criminal prosecution and loss of their medical license if they attempt or perform abortions in those health circumstances that fall outside Idaho’s narrow exception, which allows abortion only when necessary to prevent a woman’s death.
At issue, is Idaho’s Defense of Life Act, which generally bans abortion at all stages of pregnancy, and its Fetal Heartbeat Act, which bars abortion after a heartbeat is detected.
Idaho Attorney General Raúl Labrador, who intervened to defend the law celebrated after rulling saying:
“I am thrilled that the 9th Circuit Court of Appeals agreed with my defense of Idaho’s pro-life laws and ruled to stay the district court’s injunction. Idaho’s law will remain in full effect during the appeal process. Idaho’s unwavering protection for unborn children and their mothers will continue as intended.”
Stephanie Toti, executive director of the Lawyering Project and lead counsel for Seyb, said the fight would continue:
“We look forward to demonstrating to the appeals court that access to medically indicated abortion care is deeply rooted in our nation’s history and tradition and essential to its scheme of ordered liberty.”
The ruling did not newly remove legal to abort, The lower court had already narrowed its injunction on Aug. 25 to protect only Dr. Stacy Seyb, leaving other doctors subject to the restrictions. Friday’s decision now remove that remaining protection for Seyb, allowing Idaho to enforce the bans against him.
On Aug. 13, U.S. District Judge B. Lynn Winmill agreed. He said Idaho’s ban was too strict because it did not protect women whose pregnancies could cause serious and lasting harm to their health, and he ordered that Seyb should not be punished for providing abortions in those cases.
“As an intermediate court of appeals, we are bound by the decisions of the Supreme Court,” Judge Kim McLane Wardlaw, who joined Judge Consuelo Callahan in the majority, said in a separate concurring opinion.
According to her, Dobbs v. Jackson Women’s Health Organization rulling left little room for the concerns D.R Seyb raised and that an intermediate appeals court must follow the Supreme Court ruling.
But, Judge Marsha Berzon disagreed saying:
“I am convinced, as was the district court, that Dobbs does no such thing.”
Her disagreement is that Dobbs ruling addressed only the right to an elective abortion and did not decide whether women retain protection for abortions necessary to preserve their life or health.
A separate federal case requirement that St. Luke’s be allowed to provide emergency abortions to stabilize patients under federal emergency-care law remains in effect. Idaho did not appeal that order.
“We think it unlikely that Dr. Seyb will be able to square the district court’s perspective on the history and tradition concerning abortions with the Supreme Court’s perspective in Dobbs.”
Judge Marsha S. Berzon disagreed with the other judges’ opinion in her dissenting opinion, saying
“I therefore emphatically dissent from the majority’s supposition to the contrary and so from its conclusion that the defendants are likely to succeed in this case. “
Berzon’s take is that the majority is wrong to say Idaho state was likely to win its appeal, arguing that the Supreme Court’s Dobbs ruling decision ended the constitutional right to an elective abortion but did not remove the separate protection for abortions needed to preserve a pregnant woman’s life or health.
The appeals court combined the cases and set a briefing schedule. Idaho’s opening brief is due Dec. 18 and Seyb’s response is due Jan. 22, 2027. Until then, the state can enforce its bans in the cases the district court had protected, while the question of whether the Constitution requires a broader health exception remains unresolved.
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