Seyb v. Members of the Idaho Board of Medicine, et al.

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Case 1:24-cv-00244-BLW
Document 93 Filed 02/26/26 Page 1 of 26
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
STACY SEYB, M.D.,
Plaintiff,
V.
MEMBERS OF THE IDAHO BOARD OF MEDICINE, in their official capacities; et al.,
Defendants.
Case No. 1:24-cv-00244-BLW AMENDED MEMORANDUM DECISION AND ORDER
INTRODUCTION
Some rights are so essential that our Constitution enshrines them even though they are not mentioned in its text. These unenumerated rights are fundamental but rare. When asked to recognize one, courts must proceed with great caution and humility, lest unelected judges usurp the role of our democratic branches of government. Thus, to receive protection, a right must be objectively "deeply rooted in this Nation's history and tradition," and "implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). Examples include the right to marry, to procreate, and to raise one's children.
AUTHENTICATEMEMORANDUM DECISION AND ORDER - 1 U.S. GOVERNMENT INFORMATION GPO >

MEMORANDUM DECISION AND ORDER - 2
In Dobbs v. Jackson’s Women’s Health Organization, the U.S. Supreme
Court explained that the right to elective abortion, recognized in Roe v. Wade, fails
this test. The Supreme Court returned the issue of abortion to the states, triggering
a wave of experimentation. Some states have sought to drastically expand access,
while others, including Idaho, have criminalized abortion in virtually all
circumstances. The present case tests how far Idaho may go when a woman’s
pregnancy severely endangers her health. At issue is not the general right to
abortion—definitively rejected in Dobbs—but the right to self-preservation.
In Idaho, the Defense of Life Act makes abortion a felony except when
necessary to save the life of the mother (unless her death would be due to self-
harm) and for a small subset of rape and incest victims. The law does not contain
an exception for pregnancies that will cause serious and permanent harm short of
death. Essentially, pregnant women are required to sacrifice their health for the
sake of the fetus—even if the fetus will, tragically, not survive past birth.
Plaintiff Stacy Seyb, M.D., is a doctor who cares for such women. He
brought this lawsuit against the Members of the Idaho Board of Medicine to argue
that the Due Process Clause of the Fourteenth Amendment protects the right to
abortion when termination of the pregnancy is necessary to preserve the woman’s
health. He also challenges Idaho’s exclusion of life-threatening mental health
conditions when an abortion is otherwise necessary to prevent death.
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Defendants have moved for summary judgment, arguing that Dr. Seyb has
failed to produce evidence sufficient to establish the right to a medically indicated
abortion. But the record before the Court provides significant evidence that such a
right is deeply rooted in our nation’s history, bound up with traditional and
fundamental principles such as self-defense and necessity. For centuries, a range of
legal and medical authorities have recognized that abortion is not a crime when
performed to protect a woman’s health and safety. Based on this record, Plaintiff
has established a genuine dispute of material fact, which must be resolved at trial.
Accordingly, Defendants’ Motion for Summary Judgment is denied.
BACKGROUND
The State of Idaho prohibits nearly all abortions. Under the Idaho Defense of
Life Act, performing an abortion is a felony punishable by two to five years in
prison except in two narrow situations: to save the life of the mother, and for a
limited subset of rape and incest victims. Idaho Code § 18-622.1 The life-of-the-
mother exception applies when the physician determines in his or her “good faith
medical judgment . . . that the abortion was necessary to prevent the death of the
pregnant woman.” § 18-622(2)(a)(i). Abortions are not permitted when necessary
1 Separately, under the Fetal Heartbeat Preborn Protection Act, Idaho prohibits abortions
performed after the detection of a fetal heartbeat, except in cases of “medical emergency” and
some cases of rape. Idaho Code § 18-8804. It is not necessary to separately analyze this statute
because all abortions that it prohibits also fall under the Defense of Life Act.
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to prevent substantial physical harm short of death, or to prevent the woman’s
death through self-harm. Id.
The Idaho Supreme Court clarified the scope of the life-of-the-mother
exception in Planned Parenthood Great Northwest v. State, 522 P.3d 1132 (Idaho
2023). The state court held that application of the exception is subjective and
rooted in the physician’s “good faith medical judgment” about the necessity of the
abortion. Id. at 445. Thus, “the statute does not require objective certainty, or a
particular level of immediacy” and “there is no ‘certain percent chance’
requirement that death will occur under the term ‘necessary.’” Id. at 445-46.
Nonetheless, the court noted that prosecutors could use evidence that the threat of
death was relatively low against the physician in a criminal trial. Id. at 446.
Plaintiff Stacy Seyb, M.D., is a Maternal Fetal Medicine Specialist at St.
Luke’s Health System, where he treats women with high-risk pregnancies. Pl.’s
App. at 276 ¶ 1, Dkt. 83-2. Until Idaho’s abortion ban took effect, he regularly
performed abortions for patients with serious medical needs, procedures known as
medically indicated abortions or therapeutic abortions. Id. at 276 ¶ 7. He and his
colleagues now must refer these patients out of state—sometimes via airlift, when
the threat to the woman’s health is particularly acute. Id. at 286-90 ¶¶ 41, 50, 56.
He has not historically provided abortions when the pregnancy put the patient at
risk of death from self-harm, but he intends to do so now because the procedure is
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no longer generally available at outpatient clinics following the Supreme Court’s
decision in Dobbs. Id. at 491-92.
Dr. Seyb filed this lawsuit against the Members of the Idaho Board of
Medicine and the Prosecuting Attorneys of every county in Idaho. He argues that
(1) Idaho’s ban on medically indicated abortions violates the Due Process Clause,
and (2) the exclusion of life-threatening mental health conditions from the life-of-
the-mother exception violates the Equal Protection Clause. This Court dismissed
the Prosecuting Attorneys except the Ada County Prosecuting Attorney and
allowed the Attorney General of Idaho to intervene as a defendant. The remaining
Defendants have now moved for summary judgment, and the Court held oral
argument on February 5, 2025.
LEGAL STANDARD
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to summary judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A principal purpose of summary judgment
“is to isolate and dispose of factually unsupported claims” and thereby prevent
these matters “from going to trial with the attendant unwarranted consumption of
public and private resources.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 327
(1986). The moving party bears the initial burden of demonstrating the absence of
a genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076
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(9th Cir. 2001) (en banc). This does not require the introduction of affirmative
evidence, but merely the absence of evidence to support the non-moving party’s
case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).
The burden then shifts to the non-moving party to produce evidence sufficient to
support a favorable verdict. Devereaux, 263 F.3d at 1076. The non-moving party
must show by “affidavits, or by the depositions, answers to interrogatories, or
admissions on file” that a genuine dispute of material fact exists. Celotex, 477 U.S.
at 324. All evidence must be viewed in the light most favorable to the non-moving
party. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
ANALYSIS
Defendants’ summary judgment motion presents three issues. As a threshold
matter, Defendants say—again—that Dr. Seyb lacks standing. On the merits of the
due process claim, they argue that he has failed to produce sufficient historical
evidence supporting the right to a medically indicated abortion. On the equal
protection claim, they contend that Idaho’s exclusion of self-harm from the life-of-
the-mother exception is a rational classification. The Court will address each of
these matters in turn.
A. Standing
Defendants begin by disputing, for the second time, Dr. Seyb’s standing to
bring this case. Because the Court has already addressed a nearly identical issue,
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the analysis here will be relatively brief. Dr. Seyb has shown that he intends to
perform medically indicated abortions and abortions necessary to prevent the
pregnant woman’s death from self-harm. This suffices to establish standing.
The federal judiciary may decide only “actual cases or controversies.” Simon
v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976). The doctrine of
standing reflects this fundamental constitutional principle by requiring the party
invoking standing to establish three elements: “(1) an ‘injury in fact,’ (2) a
sufficient ‘causal connection between the injury and the conduct complained
of,’ and (3) a ‘likelihood’ that the injury ‘will be redressed by a favorable
decision.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58 (2014)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)). The “injury in fact”
requirement is at issue here.
Dr. Seyb brings a pre-enforcement challenge to Idaho’s criminalization of
medically indicated abortions, meaning that he has not yet experienced direct harm
from the statute. But a plaintiff need not wait to suffer “an actual arrest,
prosecution, or other enforcement action” before he can challenge an allegedly
unconstitutional policy. Driehaus, 573 U.S. at 158. Rather, he must merely show
that circumstances “render the threatened enforcement sufficiently imminent.”
Driehaus, 573 U.S. at 159. This requires the plaintiff to establish that (1) he
intends “to engage in a course of conduct arguably affected with a constitutional
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interest”; (2) the intended conduct is “arguably proscribed by the challenged
statute”; and (3) the threat of future enforcement is “substantial.” Peace Ranch,
LLC v. Bonta, 93 F.4th 482, 487 (9th Cir. 2024).
Defendants contend that the Defense of Life Act does not prohibit Dr.
Seyb’s intended course of conduct because all the abortions that he seeks to
perform fall within the life-of-the-mother exception. This argument focuses on his
answers to deposition questions about his understanding of the Defense of Life
Act, particularly Planned Parenthood’s clarification of the law. When questioned
about several pregnant women airlifted to other states, Dr. Seyb testified that he
believed those patients faced “some risk” of death. Seyb Dep. Tr. at 111:15-116:23,
Dkt. 79-4. Dr. Seyb also said that he had not received “legal training” on the
Defense of Life Act but that he believed it allowed an abortion “only if you know
that the mother is going to die.” Id. at 48:24-52:10. This, according to Defendants,
means that he “cannot prove whether any of these referrals . . . were ‘necessary’
under Idaho law.” D.’s Mem. at 8, Dkt. 79-1.
Defendants misunderstand the “arguably proscribed” requirement. Standing
does not turn on the counterfactual question of whether Dr. Seyb would have faced
prosecution or conviction had he performed those abortions in Idaho. He has the
burden only of showing that his “intended conduct” is “arguably proscribed” by
the Defense of Life Act. Abortions in those specific emergency contexts may not
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have actually been illegal, but they were “arguably proscribed” due to the
subjectivity of the law and the nature of prosecutorial discretion.2
More broadly, Defendants’ position displays a remarkable callousness
toward the challenges confronting Idaho doctors under the Defense of Life Act.3
The Idaho Supreme Court has clarified that a pregnant woman need not be on
death’s door to justify an abortion, but evidence that death was, say, only 25%
likely can be invoked at criminal proceedings, where the doctor faces up to five
years in prison if a jury determines that he or she did not determine “in good faith”
that the abortion was “necessary” to save the woman. See Planned Parenthood,
522 P.3d at 446 (“Of course, a prosecutor may attempt to prove that the
physician’s subjective judgment that an abortion was ‘necessary to prevent the
2 Justice Barrett drew out this point at the oral argument for Moyle v. United States in the
following exchange:
Justice Barrett: What if the prosecutor thought differently? What if the prosecutor
thought, well, I don’t think any good-faith doctor could draw that conclusion, I'm
going to put on my expert?
Idaho’s Counsel: And -- that, Your Honor, is the nature of prosecutorial
discretion, and it may result in a -- a case . . .
Transcript of Oral Argument at 29:3-29:11, Moyle v. United States, 603 U.S. 324 (2024) (No.
23-726, No. 23-727).
3 A July 2025 study found that Idaho lost 35% of its practicing obstetrician doctors after
the state’s abortion ban went into effect in 2022. J. Edward McEachern et al., Change in Number
of OB/GYN Physicians Practicing Obstetrics After the Dobbs Decision, 8 JAMA Network Open,
no. 7, July 31, 2025, https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2837058?.
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death of the pregnant woman’ was not made in ‘good faith’ by pointing to other
medical experts on whether the abortion was, in their expert opinion, medically
necessary.”). Even to this Court, the contours of the life-of-the-mother exception
remain ambiguous. When does a threat to health cross over to a threat to life? What
degree of danger can justify a “good faith” conclusion that an abortion is
“necessary”? How close to imminent must the patient’s death be? The Idaho
Supreme Court has left these questions to prosecutors and juries, forcing
physicians to navigate these urgent and heartbreaking medical situations with the
threat of criminal prosecution hanging over them.
For these reasons, Dr. Seyb’s deposition answers do not undermine his
standing to bring this challenge. The patients referred out of state do not obviously
fall within the life-of-the-mother exception. And even if the cases he confronted in
the early months of 2023 might not have warranted a prosecution, Dr. Seyb has
shown that he intends to treat other pregnant women facing health threats short of
death. Idaho’s law arguably proscribes this course of conduct.
Defendants also dispute Dr. Seyb’s standing to bring his equal protection
claim regarding Idaho’s distinction between life-threatening physical and mental
health conditions. Here, Defendants insist that Dr. Seyb does not intend to perform
abortions for mental health reasons because he did not perform such abortions in
the past. Again, this argument overlooks the nature of a pre-enforcement challenge.
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The Ninth Circuit requires that a plaintiff “intends” to engage in arguably
proscribed conduct, not that he has already done so. Peace Ranch, 93 F.4th at 487.
Dr. Seyb testified at a deposition that he would perform an abortion for mental
health reasons if he had such a referral from a psychiatrist, and that he has a history
of treating pregnant patients at risk of death by self-harm.4 Seyb Dep. Tr. at 158:15-
159:2, Dkt. 79-4. These facts suffice to establish standing.
B. Due Process Right to a Medically Indicated Abortion
The Court now takes up the substance of Defendants’ summary judgment
motion. The heart of this case is the claim that the Due Process Clause of the
Fourteenth Amendment protects the right to abortion when necessary to preserve
the health of the pregnant woman. Despite Defendants’ protestations, Dobbs did
not resolve this issue. Dobbs answered the question of whether “all pre-viability
prohibitions on elective abortions are unconstitutional.” Dobbs, 597 U.S. at 234
(emphasis added). In rejecting the general right to abortion, the Supreme Court did
not address states’ authority to ban abortions needed to save a pregnant woman’s
life or health. See id. at 393 (Sotomayor, Kagan, Breyer, JJ., dissenting). And
4 Defendants’ argument here also overlooks the fact that such abortions would have taken
place as legal elective abortions at outpatient clinics before Idaho’s abortion ban went into effect.
Because all such clinics have closed, a woman seeking an abortion due to a risk of death from
self-harm, if such procedures were allowed, would now need to see a hospital provider like Dr.
Seyb.
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although laws restricting abortion must typically satisfy only the rational basis test,
id. at 301 (majority opinion), heightened scrutiny applies when a law goes beyond
the regulation of abortion to infringe on a constitutional right. See, e.g., Planned
Parenthood Great Northwest v. Labrador, 122 F.4th 825, 844 (9th Cir. 2024).
That is what Dr. Seyb alleges here. His argument is that the right to a
medically indicated abortion springs from what is best termed a fundamental right
to self-preservation. To survive summary judgment, he must establish a genuine
dispute of material fact as to whether such a right is deeply embedded in our
nation’s tradition and history. The Court will begin by reviewing the history-and-
tradition test before considering whether Dr. Seyb has put forward sufficient
evidence for the right to a medically indicated abortion.
1. The History-and-Tradition Test
The Due Process Clause protects certain unenumerated rights that are so
fundamental that “neither liberty nor justice would exist if they were sacrificed.”
Glucksberg, 521 U.S. at 721 (quoting Palko v. Connecticut, 302 U.S. 319, 325
(1937)). These substantive due process rights are essential but limited. First, the
Due Process Clause protects only “those fundamental rights and liberties which
are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in
the concept of ordered liberty.” Id. at 720-21 (internal quotations omitted). Second,
there must be “‘a careful description’ of the asserted fundamental liberty
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interest”—not merely an appeal to broad ideals and principles. Id. at 721 (quoting
Reno v. Flores, 507 U.S. 292, 303 (1993)).
Accordingly, when considering an asserted substantive due process right, the
inquiry hinges on “a careful analysis of the history of the right at issue.” Dobbs,
597 U.S. at 238. Without such constraint, the Fourteenth Amendment’s guarantee
of “liberty” becomes capacious—a blank slate onto which courts may impose a
virtually unlimited range of policy preferences. Id. at 239. Reliance on objective
historical evidence ensures that judges do not “confuse what that Amendment
protects with our own ardent views about the liberty that Americans should enjoy.”
Id. America’s “history, legal traditions, and practices thus provide the crucial
‘guideposts for responsible decisionmaking,’ that direct and restrain our exposition
of the Due Process Clause.” Glucksberg, 521 U.S. at 721 (quoting Collins v. City
of Harker Heights, 503 U.S. 115, 125 (1992)).
The Supreme Court has modeled this historical inquiry several times in
recent years. Most relevantly, in Dobbs the core of the analysis was the status of
abortion at the time of the Fourteenth Amendment’s adoption, though the Court
also considered whether such a right might have existed earlier in the American
tradition. Dobbs, 597 U.S. at 251. Temporally, the Court reviewed American law
from the colonial era to the years immediately before Roe, along with “eminent
common law authorities (Blackstone, Coke, Hale, and the like)” tracing back to the
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thirteenth century. Id. at 242-50. Substantively, the Court canvassed the historical
record for evidence that abortion was affirmatively protected from state intrusion,
not merely deemed “permissible” by some authorities. See id. at 243, 251. Key
sources included state constitutional provisions, statutes, judicial decisions, and
scholarly treatises—almost all of which expressed the position that elective
abortion was a crime, at least in many circumstances. Id. at 249-52.
The Court’s recent Second Amendment jurisprudence also provides a useful
example, though the burden of the historical inquiry is flipped. Because the right to
bear arms is enumerated, the analysis hinges on whether a challenged regulation—
not the asserted right—reflects our history and tradition. See United States v.
Rahimi, 602 U.S. 680, 690-92 (2024). Under this assessment, firearm regulation
must remain rooted in history but not “trapped in amber.” Id. at 691. Thus, “when a
challenged regulation does not precisely match its historical precursors, ‘it still
may be analogous enough to pass constitutional muster.’” Id. at 692 (quoting N.Y.
State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 30 (2022)). Like with abortion, the
relevant history runs from the early days of common law to the years following
ratification—though courts must avoid giving either common-law rights or post-
enactment practices “more weight than [they] can rightly bear.” Bruen, 597 U.S. at
35. The core question is the scope that constitutional rights “were understood to
have when the people adopted them.” Id. at 34 (quoting District of Columbia v.
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Heller, 554 U.S. 570, 634-35 (2008)).
Uncertainties linger about the contours of the history-and-tradition test, at
least as applied at the district court level. For instance, this Court has questions
about the appropriate level of specificity when considering an asserted due process
right. Is a historical “dead ringer” required, or will a looser analogy suffice, like in
the context of gun regulation? This Court also has concerns about how to weigh
competing historical sources and how much emphasis to place on practices in
1868—the year of the Fourteenth Amendment’s ratification—over earlier or later
traditions. But these are matters for another day, and perhaps another case. The
only issue now is whether Dr. Seyb has established a material question of fact
regarding the history and tradition of a right to a medically indicated abortion.
2. Historical Evidence for an Abortion Health Exception
The asserted right to a medically indicated abortion does not arise in a
vacuum as a free-standing manifestation of substantive due process. Rather, the
right exists within a broader right to self-protection and self-preservation, which is
fundamental to the American tradition of justice.
i. The Right to Self-Protection
Our legal tradition has always recognized that otherwise unlawful acts can
become permissible when necessary to prevent harm to oneself or another. This
principle manifests in the fundamental right to self-protection, which traces back to
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the earliest days of the common law.
The right to self-defense is so well established that there is no need to linger
on it. Blackstone observed that English law pardoned even homicide if done to
preserve either life or limb, and St. George Tucker referred to self-defense as “the
first law of nature.” 1 William Blackstone, Commentaries *130, Editor’s App. 300
(S. Tucker ed. 1803). Summing up this tradition, the Supreme Court described self-
defense as “a basic right, recognized by many legal systems from ancient times to
the present.” McDonald v. City of Chicago, 561 U.S. 742, 767 (2010).
Self-defense is traditionally invoked against interpersonal threats—when
necessary to protect “against the use of unlawful force by such other person.”
Model Penal Code § 3.04. The related doctrine of necessity applies to broader
forms of danger—essentially, when a person breaks the law because “they were
faced with a choice of evils and chose the lesser evil.” United States v. Schoon, 971
F.2d 183, 195 (9th Cir. 1991). Like self-defense, necessity has a long pedigree,
discussed in English common law and recognized by numerous American courts
since the Founding.5 This deep tradition suggests that the right to self-protection is
5 See, e.g., Reninger v. Fagossa, [1551] 1 Plowd. 1, 75 Eng. Rep. 1 (“A man may break
the words of the law, and yet not break the law itself... where the words of them are broken to
avoid greater inconvenience, or through necessity, or by compulsion.”); The William Grey, 9 F.
Cas. 1300 (No. 17,694) (C.C.C.D. N.Y. 1810); 24 F. Cas. 873 (No. 14,470) (C.C.D. Mass.
(Continued)
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properly understood to encompass not just interpersonal violence, but also
unintentional—and sometimes tragic—forms of peril to the self.
This fundamental right to self-protection provides a compelling basis for a
due process right to a medically indicated abortion.6 But like any right, the right to
self-protection is not absolute. The Court must next consider the scope of the
right—specifically, whether evidence suggests that it has historically encompassed
the right to medically indicated abortions.
ii. Medically Indicated Abortion as Self-Preservation
In substantive due process cases, the asserted right must be defined with a
high degree of specificity. See Glucksberg, 521 U.S. at 721; Flores, 507 U.S. at
302-03. Because defining rights in general terms improperly removes issues from
the process of democratic deliberation, courts must assess historical support for the
1834). For more on this history, see Edward B. Arnolds & Norman F. Garland, The Defense of
Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J. Crim. L. & Criminology
289, 291-93 (1974).
6 Dr. Seyb also seeks to ground the right to a medically indicated abortion in what he
describes as a fundamental right to essential medical treatment. This argument is less
compelling. States enjoy a broad police power to pass health and welfare laws, which is why
federal courts must typically presume that such laws are valid. Dobbs, 597 U.S. at 301. And
although states must provide essential medical care to people in custody under the Eighth and
Fourteenth Amendment, Sandoval v. County of San Diego, 985 F.3d 657, 667-68 (2021), this
obligation does not prevent states from restricting the scope of permissible health care, see
United States v. Skrmetti, 605 U.S. 495, 522-25 (2025). A fundamental right to seek medical
treatment would imply that most or all laws regulating the medical field are subject to strict
scrutiny, which is obviously not the case.
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particular right asserted—not appealing but vague principles like dignity,
autonomy, and freedom. See Dobbs, 597 U.S. at 257; Flores, 507 U.S. at 302-03.
Here, the issue at hand is whether the right to self-protection has traditionally
encompassed the right of a pregnant woman to terminate a pregnancy that
threatens her health. Cf. Pickup v. Brown, 740 F.3d 1208, 1235 (9th Cir. 2014)
(analyzing the scope of the fundamental right to parent). Dr. Seyb has produced
sufficient evidence to establish a genuine and material question of fact.
As a preliminary matter, the Court takes up Defendants’ contention that an
asserted substantive due process right must be expressly articulated as a “right” by
historical sources. This is not the standard set out in Glucksberg or Dobbs.
Particularly in Glucksberg, the Supreme Court emphasized the importance of
“practices” and looked for historical recognition of a “liberty interest” rather than
the declaration of a “right.” Glucksberg, 521 U.S. at 710, 722-24. Defendants’
narrow reading also ignores the Supreme Court’s recent caselaw explaining that,
despite the paramount importance of history, rights do not remain “trapped in
amber.” Rahimi, 602 U.S. at 691. Thus, this Court is not overly concerned, at least
at the present stage, with whether historical authorities spoke in the precise
cadence of “rights” that we use today.
Turning to the factual record, the Court will begin with the weighty evidence
of a historical right to an abortion when necessary to save the life of a pregnant
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woman. At oral argument, Defendants asserted that a law banning life-saving
abortions would receive the deference of rational basis review—in other words,
that there is not a fundamental right to even an abortion necessary to prevent the
woman’s death. Although this is not the question before the Court, it is a helpful
baseline for considering the applicability of the right to self-protection in the
context of abortion. It also bears on Dr. Seyb’s equal protection claim, which the
Court will discuss below.
The historical record substantially supports the right to abortion when
needed to save the mother’s life. Starting with the common law, although early
authorities did not explicitly discuss a life-of-the-mother exception, later English
caselaw suggests that the principles of self-defense and necessity were understood
to justify abortion in such circumstances. See Rex v. Bourne, (1938) 3 All E.R. 615
(Eng.). Closer to home, of the 28 states that banned abortion in 1868, 19 included
an express life exception7; two had an express safety exception8; and six applied
7 New York, Ohio, Indiana, Maine, Alabama, Michigan, Virginia, New Hampshire,
California, Iowa, Wisconsin, Kansas, Connecticut, Rhode Island, Nevada, West Virginia,
Oregon, Florida, and Missouri. Dr. Seyb does not include Missouri in his count, apparently based
on the 1825 version of the statute cited in Dobbs, but in 1835 Missouri created an exception for
abortions performed to preserve the mother’s life. Act of Mar. 20, 1835, art. 2, §§ 10, 36, 1835
Mo. Rev. Stat. 165, 168, 172.
8 Maryland and Illinois. Dr. Seyb apparently does not include Illinois in his count, but the
Illinois legislature adopted a law in 1867 providing that its criminal abortion statute did not
(Continued)
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only to abortions done “feloniously,” “unlawfully,” or “without lawful
justification”9—language understood to create, at minimum, a life exception.10 P.’s
App. at 170-71; Dobbs, 597 U.S. at 302-24. The single remaining state, Nebraska,
adopted a life exception when it codified its laws in 1873. See Neb. Rev. Stat. pt. 3,
ch. 4, § 42 (Estabrook 1866). Every other criminal abortion law adopted after 1868
likewise contained an express life exception. See Dobbs, 597 U.S. at 317-23, 327-
30; see also id. at 339 n.2 (Kavanaugh, J., concurring) (“Abortion statutes
traditionally and currently provide for an exception when an abortion is necessary
to protect the life of the mother.”).
This history shows a narrow but fundamental limit on states’ authority to
ban abortions. The record, when viewed in the light most favorable to Dr. Seyb,
further contains evidence of a deeply rooted right to abortion when necessary to
preserve a woman’s health. Though only Maryland and Illinois expressly allowed
“apply to any person who procures or attempts to procure the miscarriage of any pregnant
woman for bona fide medical or surgical purposes.” 1867 Ill. Pub. Laws, 25th Gen. Assembly
1st Sess. § § 2, 3, at 89 (Act of Feb. 28, 1867).
9 Massachusetts, Vermont, New Jersey, Texas, Louisiana, and Pennsylvania. Dr. Seyb
does not appear to include Texas in his count, but its statute applied only to abortions performed
“unlawfully and maliciously.” Dobbs, 597 U.S. at 310 (quoting 1854 Tex. Gen. Laws p. 58). The
evidentiary significance of these ambiguous statutes is not fully clear, but at this stage the Court
views them in the light most favorable to the plaintiff.
10 See Commonwealth v. Wheeler, N.E.2d 4, 5 (Mass. 1944); State v. Brandenburg, 58
A.2d 709, 710 (N.J. 1948).
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such abortions in 1868, the six states that criminalized abortions done “unlawfully”
arguably also recognized broad health exceptions.11 There is further historical
evidence that, in practice, the life-of-the-mother exception extended to pregnancies
that would cause the woman permanent and serious harm,12 and this Court has not
found a single case where a state prosecuted an abortion performed to preserve a
woman’s health. Even Roe and Casey distinguished between elective and
medically indicated abortions, with states free to prohibit the former but not the
latter after viability. See Stenberg v. Carhart, 530 U.S. 914, 947-48 (2000)
(O’Connor, J., concurring).
In this vein, several states that historically recognized only life exceptions
have recently held that the right to a medically indicated abortion is nonetheless
deeply embedded in their history and tradition. The Supreme Court of Indiana held
that the right to self-protection, implicit in the state constitution, prevented the
11 See Wheeler, N.E.2d at 5 (“[A] physician may lawfully procure the abortion of a
patient if in good faith he believes it to be necessary to save her life or to prevent serious
impairment of her health, mental or physical.”); Brandenburg, 58 A.2d at 710 (“We find it
unnecessary to consider whether under our statute and the construction thereof given by our
courts threatened impairment of a woman’s health, as distinguished from the saving of her life,
constitutes lawful justification.”).
12 See, e.g., T. Gaillard Thomas, Abortion and Its Treatment, from the Stand-Point of
Practical Experience 99 (New York, D. Appleton & Co. 1893) (“[W]henever it is felt that the
prolongation of pregnancy is going to destroy the life or intellect, or to permanently ruin the
health of a patient, abortion should be brought on.”); L. Dennis, Ethics of Abortion, 5 Am. J.
Homeopathic Materia Medica & Rec. Med. Sci. 115, 118–19 (1872); Criminal Abortions, 34 J.
Lancet 82, 82 (1914).
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legislature from “prohibit[ing] an abortion procedure that is necessary to protect a
woman’s life or to protect her from a serious health risk.” Members of Med.
Licensing Bd. of Ind. v. Planned Parenthood Great Northwest, 211 N.E. 3d 957,
976 (Ind. 2023). The North Dakota Supreme Court similarly explained that the
state’s “history and traditions . . . establish that the right of a woman to receive an
abortion to preserve her life or health was implicit in North Dakota’s concept of
ordered liberty before, during, and at the time of statehood.” Wrigley v. Romanick,
988 N.W.2d 231, 242 (N.D. 2023).
Going further back in history, common law sources also provide evidence,
albeit indirectly, of a right to a medically indicated abortion. Blackstone
condemned post-quickening abortion as “a very heinous misdemeanor”—though
not homicide—immediately before explaining that the law of self-defense pardons
even homicide if done “to save either life or member.” 1 Blackstone, supra, at
*129-30. Hale distinguished between abortions performed on a woman “to destroy
the child within her” and those done “to cure her of a disease.” Sir Matthew Hale,
History of Pleas of the Crown 429-30 (1736). Consistent with this tradition,
English courts interpreted that country’s 1861 abortion ban to include an implicit
exception for the health of the mother. In the landmark case Rex v. Bourne, (1938)
3 All E.R. 615 (Eng.), the court first observed that abortion was allowed “for the
purpose only of preserving the life of the mother.” But, the court explained, a
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“reasonable” interpretation of those words extended to serious health
impairments—circumstances where “the probable consequence of the continuance
of the pregnancy will be to make the woman a physical or mental wreck.” Id.
More broadly, the right to self-defense through lethal force traditionally
applies to threats of serious bodily harm in addition to death—both man’s “life”
and his “limbs,” as Blackstone noted. In this sense, what Defendants are really
seeking is a pregnancy exception to the right to self-protection. Normally, a person
has the right to kill another person who means to do grave harm. See, e.g., Idaho
Code § 19-202A (“No person in this state shall be placed in legal jeopardy of any
kind whatsoever for protecting himself or his family by reasonable means
necessary . . . .”). In Idaho, however, pregnant women must endure all manner of
injuries short of death to avoid compromising the potential life they carry. Perhaps
our nation’s history and traditions allow Idaho to compel this sacrifice, but Dr.
Seyb has produced significant evidence to the contrary. Certainly, the record is
mixed, and Defendants have cited sources indicating that states have long
prohibited abortions even when medically necessary. To rule on this challenging
due process question, the Court will need to carefully weigh nuanced historical
evidence. And that is why the case must proceed to trial.
C. Equal Protection for Life-Threatening Mental Health Conditions
Finally, the Court considers Dr. Seyb’s equal protection claim, which
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challenges Idaho’s refusal to include death from self-harm in the life-of-the-mother
exception. This issue turns on whether the Court finds that a fundamental right is at
stake in the due process claim. Therefore, summary judgment is improper.
The Equal Protection Clause of the Fourteenth Amendment restricts states’
ability to advantage one class of persons over another. See City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Most laws, of course, classify in
one way or another, and in general these distinctions are presumed constitutional.
See Heller v. Doe, 509 U.S. 312, 319 (1993). But heightened scrutiny applies when
a classification either “proceed[s] along suspect lines” or “involve[s] fundamental
rights.” Id. Pregnant women at risk of death from self-harm are not a suspect class,
as all parties acknowledge. If, however, there is a fundamental right to a life-saving
abortion, Idaho’s exclusion of self-harm impinges on that right. Strict scrutiny
would thus apply, meaning that the law survives only if “suitably tailored to serve
a compelling state interest.” Cleburne, 473 U.S. at 440.
While Defendants’ proffered justifications—such as the existence of
alternative treatments and the difficulty of verifying the threat of self-harm, which
Defendants claim “can be professed by anyone”—likely pass muster under rational
basis review, they do not necessarily satisfy strict scrutiny. It remains unclear
whether these justifications constitute a compelling state interest, and even if they
do, it is not clear whether the categorical self-harm exclusion is narrowly tailored
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to serve such interests—it applies even when psychiatric interventions have failed,
when the risk of death has been clinically verified through standardized, evidence-
based protocols, and when the patient appears in imminent danger. These are
questions the Court cannot resolve at summary judgment. The equal protection
claim must therefore proceed to trial.
As a closing note, it is true that abortion poses a profound moral question,13
and that such matters must generally be left to the states rather than the judiciary.
But the Fourteenth Amendment exists to circumscribe what the state may force
individuals to endure, and how far it may go when prioritizing some lives over
others. Idaho could not make a mother undergo a bone marrow transplant to save
her child. Can it require a pregnant woman to give up her ovaries or her kidneys in
the hopes of saving a fetus? Answering that question will require the Court to
weigh the evidence of our nation’s history, traditions, and practices. For that
reason, this case must go to trial.
13 Defendants begin their brief by pointing to religious traditions that oppose abortion,
including the Church of Jesus Christ of the Latter-Day Saints. Although legally irrelevant, it is
worth noting that the LDS Church views abortion as permissible when the health of the mother is
in serious jeopardy, and in cases of rape and incest or when the fetus will not survive past birth.
See Abortion, Church of Jesus Christ of the Latter-Day Saints,
https://newsroom.churchofjesuschrist.org/official-statement/abortion.
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ORDER
IT IS ORDERED that:

1. Defendant’s Motion for Summary Judgment (Dkt. 79) is DENIED.
DATED: February 26, 2026

B. Lynn Winmill
US. District Court Judge

od

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