As previously reported, in August an Idaho federal district court held that the right to a health-preserving abortion is protected by the Due Process Clause. It also held that Idaho may not criminalize abortions that are necessary to prevent the death of a pregnant woman from self-harm. The district court narrowed its injunction enforcing this holding while an appeal is pending so that enforcement of Idaho's abortion law was only prohibited against the plaintiff in the case until appellate courts ruled. Idaho's attorney general however appealed to the 9th Circuit asking for a stay of this narrowed injunction.
In Seyb v. Members of the Idaho Board of Medicine, (9th Cir., Oct. 30, 2026), the 9th Circuit Court of Appeals in a 2-1 decision stayed the district court's injunction while an appeal moves forward, thus allowing enforcement against anyone of Idaho's broad abortion ban containing only rape, incest and life-of-the-mother exceptions, while the appeal is heard. The majority opinion said in part:
Defendants have made a strong showing of likely success on the merits. The district court reviewed the history and tradition concerning abortions and concluded that “legal tradition has consistently shielded health-preserving abortions from prosecution.” However, the Supreme Court in Dobbs v. Jackson Women’s Health Organization ... plowed the same ground and held that “the Constitution does not confer a right to abortion.”... 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....
Defendants’ showings of likelihood of success and irreparable injury are even stronger where the proffered reason for the abortion is the possibility of the woman committing suicide. There are other methods for preventing suicide, and Idaho’s “profound interest” in preserving fetal life reasonably supports the use of those means over the termination of pregnancy....
Judge Wardlaw filed a concurring opinion, saying in part:
... Dobbs excoriated the reasoning of Roe and Casey and explicitly overruled them, thus closing the door on finding any constitutional right to an abortion—particularly one as vague and ill-defined as the right pressed here....
Judge Berzon dissented, saying that Dobbs dealt only with abortion-on-demand, and not with abortions to save a mother's life or health. He said in part:
I cannot read Dobbs’s pronouncement that “Roe and Casey must be overruled” as all-comprehensive..., and so as reaching the separate Roe/Casey ruling regarding abortions performed to preserve the life or health of the mother. Were that so, Dobbs would have overruled Roe and Casey even for abortions necessary to preserve the life of the woman....
Dobbs did establish the required methodology — history and tradition. The panel majority does not conduct any such inquiry. The majority regards Dobbs as having decided — without any separate history-and-tradition inquiry — that health-preserving abortions trigger no heightened constitutional protection....
There is a second, independent reason why I would not grant a stay of the district court’s injunction: Idaho has not shown it will be irreparably injured during the pendency of this appeal....
ADF issued a press release announcing the decision.
