Idaho law professors and legal scholars file amicus brief before Idaho Supreme Court in abortion rights cases

Washington, D.C., 12 September 2022 — On Friday, five Idaho law professors and legal scholars knowledgeable on state constitutional law and history filed leave to submit an amicus brief in Planned Parenthood’s abortion cases scheduled to be heard at the Idaho Supreme Court later this month.

The scholars provided their analysis regarding the interpretation of the Idaho Constitution—and analogous provisions under other state constitutions—as to what constitutes a fundamental right entitled to constitutional protections. The brief was not written in support of either Planned Parenthood or the State of Idaho. 

In their brief, the scholars conclude that Idaho’s Constitution confers more rights than the federal Constitution in many areas, including personal autonomy, the right to procreate, and how to raise children. 

“The Idaho Court has a long history of interpreting the Idaho Constitution independently from the federal constitution,” said Professor Elizabeth Brandt, one of the signatories to the brief who previously was Dean of the University of Idaho College of Law. “The state Constitution has especially unique language when it comes to protecting individual liberty and safety. We urge to the court to recognize some of the unique language in the Idaho Constitution and continue its practice and tradition of independence as it evaluates the law in this case.”

Professor John Rumel, also a signatory to the brief, who is a law professor at the University of Idaho College of Law, added: “In many circumstances, including cases involving government intrusion into matters of personal privacy and liberty, the Idaho Supreme Court has relied on provisions of the Idaho Constitution to check overreaching by the Idaho legislature or to otherwise require the legislature to comply with state constitutional law. We hope Idahoans—as well as the members of the Idaho Supreme Court—bring similar resolve to scrutinizing limits on the reproductive rights of Idaho women under the state Constitution.”

Other signatories to the brief include: Professor David Adler, who has taught on constitutional issues and individual rights at all three of Idaho’s public universities; Professor McKay Cunningham, who has taught constitutional law at the University of Idaho College of Law and presently teaches constitutional law at the College of Idaho; and Professor Donald Crowley, who is Professor Emeritus at the University of Idaho, and who taught for 39 years in the Political Science Department and co-authored The Idaho Constitution: A Reference Guide.

Whereas in many states submitting an amicus brief is straightforward, this is not the case in Idaho, where the Idaho Supreme Court has routinely rejected amicus brief submissions. 

Hogan Lovells partner Robert Duncan, who served as counsel on the brief, commented, “We hope the Court accepts this brief, given that the Planned Parenthood cases raise complex issues of law that the Court has not previously had to grapple with directly, as well as questions about the meaning and future of the Idaho Constitution that are among the most momentous ever laid before the Court.”

Hogan Lovells senior associate Elizabeth Och added: “Other courts considering challenges to total abortion bans, including the Federal District Court for the District of Idaho and the Michigan Court of Claims, have expressly noted how helpful amicus briefs have been in explaining these complicated issues.”

In addition to Duncan (Washington, D.C.) and Och (Denver), the Hogan Lovells team representing the Amici Curiae include associates Matthew Miller (Denver), Eric Wang (New York), and Lisa Femia (New York); and law clerks Tessa Ward and Steve Bruns (both Denver). 


The brief can be viewed here.


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