An Idaho doctor may believe continuing a pregnancy could seriously harm a patient. Under Idaho law, however, the legal question is whether an abortion is necessary to prevent the patient’s death.
Where that line falls was at the center of a federal appeals court hearing last Tuesday as Idaho defended its abortion restrictions against a challenge from Boise maternal-fetal medicine specialist Dr. Stacy Seyb.
Judges Kim McLane Wardlaw, Marsha Berzon and Consuelo Callahan of the U.S. Court of Appeals for the Ninth Circuit heard arguments on Sept. 22 in Seyb v. Labrador. The judges are considering whether to lift a temporary hold on a lower court order that would allow Dr. Stacy Seyb to perform certain abortions currently prohibited under Idaho law while the state appeals the ruling.
Idaho law prohibits most abortions, with exceptions for cases of rape and incest in the first trimester or cases where abortion is necessary to prevent the death of a pregnant patient. Physicians who violate the criminal abortion law can face two to five years in prison and suspension or revocation of their medical license.
Andy Hyer, a Boise State professor teaching health law and ethics, said the exceptions become difficult when doctors must make medical decisions without knowing how those decisions could later be evaluated under the law.
“Idaho law contains a narrow exception that permits abortions where the pregnant woman’s life is at risk, but it does not provide an exception where only the woman’s health is at risk,” Hyer said. “So a physician must wait until the woman’s condition deteriorates to where her life is at risk before an abortion is permissible.”
That uncertainty is part of Seyb’s challenge.
Seyb, who specializes in high-risk pregnancies, testified he referred patients out of Idaho because he did not believe their conditions allowed him to legally perform abortions in the state. Idaho disputed Seyb’s interpretation and argued physicians have more room to exercise medical judgment than Seyb believes.
U.S. District Judge B. Lynn Winmill largely sided with Seyb in August, extending constitutional protections to abortions necessary to prevent serious, lasting harm or death through self-harm.
Winmill later narrowed the injunction to only protect abortions performed by Seyb, the sole plaintiff in the case. The order did not extend these protections to other Idaho physicians. Attorney General Raúl Labrador appealed, and the Ninth Circuit temporarily placed Winmill’s order on hold Sept. 3.
“Last month a federal judge blocked us from enforcing our pro-life laws,” Labrador said in a statement provided to The Arbiter. “We appealed immediately, and today the Ninth Circuit put that order on hold.”
Labrador maintains that Idaho law already allows doctors to use medical judgment to save a patient’s life and that abortion policy should remain with state voters and elected officials, not federal courts.
During the Sept. 22 hearing, attorney Mathew Hoffmann, representing Idaho, argued that Winmill’s injunction gives physicians too much discretion in determining when an abortion was medically necessary.
“They leave it up to the subjective judgment of doctors to determine a risk sufficient to justify abortion,” Hoffmann said.
Stephanie Toti, executive director of the Lawyering Project and an attorney representing Seyb, characterized the injunction differently.
“The injunction entered by the district court in this case is narrow,” Toti said. “It would enable only a small number of patients each year to obtain an abortion.”
“But for those patients, access to that care is vitally important, as the district court found,” Toti added.
The question of physician uncertainty also surfaced during oral arguments. Wardlaw asked whether Labrador planned to issue additional guidance explaining how doctors should comply with Idaho’s abortion restrictions.
“There’s sufficient guidance out there for doctors,” Hoffmann responded.
The judges also questioned how the case fits with the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. Seyb’s attorneys argue Dobbs did not resolve whether separate constitutional protections apply when an abortion is medically necessary to preserve a patient’s life or health. Idaho argues Winmill improperly recognized a constitutional right that does not exist after Dobbs.
Judge Consuelo Callahan questioned whether the injunction should protect patients at risk of suicide. Toti argued those patients seek abortions to remain alive and avoid serious psychiatric relapse.
The three-judge panel did not issue a decision during the hearing. Until it does, Winmill’s injunction remains on hold while the legal fight over where Idaho can draw that line continues.
