Michael L. Smith (University of Idaho College of Law) has posted Idaho's Law of Constitutional Interpretation: Lessons from Planned Parenthood Great Northwest v. State (Idaho Law Review, Vol. 59, Forthcoming) on SSRN. Here is the abstract:
In Planned Parenthood Great Northwest v. State, the Idaho Supreme Court ruled that the Idaho Constitution does not protect a right to abortion. In doing so, the court proclaimed that its job was not to weigh consequences or rely on out-of-state precedent, but to interpret Idaho’s constitution based on the intentions of the constitution’s framers. Any other approach, the court asserted, would replace the constitution’s meaning with the personal preferences of the justices.
The Idaho Supreme Court was wrong. It claimed that Idaho’s law has long required an approach similar to modern, originalist methods. But the authority upon which the court relied demonstrates an extensive history of numerous interpretive methods, including references to Idaho’s and other states’ precedents and constitutional provisions, prudential considerations, and textualist principles. Rather than confront or distinguish this contrary authority, the court cited it in support of its conclusions, cherry-picking language from opinions to falsely portray a uniform, originalist approach to constitutional interpretation.
The court compounded this shoddy analysis by copying the United States Supreme Court’s approach in due process cases. In doing so, the court misapplied federal constitutional interpretation methodology to state constitutional provisions entirely distinct from the Fourteenth Amendment’s Due Process Clause. Idaho’s constitution mandates the protection of inalienable rights. But the Idaho Supreme Court effectively read this provision out of the constitution through its reliance on federal interpretive methods. I conclude by examining several other concerning aspects of the Planned Parenthood opinion, including the court’s refusal to weigh competing liberty interests, its decision to equate state constitutional rights with United States Constitutional protections, and its potential recognition of fetal personhood.