Idaho Supreme Court hears arguments in abortion ballot initiative lawsuit
In a packed hearing room, the Idaho Supreme Court hears oral arguments in a lawsuit challenging state officials' descriptions of an abortion rights ballot initiative on Friday, April 25, 2025. (Kyle Pfannenstiel/Idaho Capital Sun)
The Idaho Supreme Court on Friday heard arguments in a lawsuit that alleges state officials drafted biased and misleading information for voters on an abortion rights ballot initiative.
Idahoans United for Women and Families, the group behind the ballot initiative, in January sued, alleging ballot titles and financial analysis — developed by state officials for voters to see — are inaccurate.
'Idahoans need clear and concise information about a proposed ballot initiative's fiscal impact and its purpose to decide whether to say yes or no at the ballot box — based on their understanding, and not on confusion,' said Anne Henderson Haws, an attorney with the law firm Holland & Hart, which is representing the abortion ballot initiative group. 'The fiscal impact statement and the ballot titles prepared for the Reproductive Freedom and Privacy Act fail to meet these standards.'
As Idaho Legislature winds down, Republican lawmakers maintain strict abortion bans
State agencies defend the descriptions — which use 'fetus viability' in one reference, and say the initiative will marginally raise state expenses. The agencies, which wrote the ballot titles and fiscal analysis, say they comply with state law.
'To the extent there's a gap here, I think the gap between their definition and the term fetal variability is worlds larger than the gap between the term fetal viability and fetus viability,' said Idaho Solicitor General Alan Hurst, who works for the Idaho Attorney General's Office. 'And if the two terms are not synonymous — like if fetus favors us slightly, and fetal favors them slightly, which we don't concede — then why is it that the one that's in favor wins out, when the statutory standard is you're not supposed to be either in favor or against?'
The ballot initiative proposes abortion exemptions to Idaho's strict abortion ban laws for emergencies, fetal viability and other reproductive health protections.
The court will issue a decision at a later date.
In 2023, the Idaho Supreme Court ordered the Idaho Attorney General's Office to rewrite ballot titles for an unsuccessful election reform ballot initiative, following a lawsuit.
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The ballot titles, developed by the Idaho Office of the Attorney General, are brief descriptions of the initiative.
The short title doesn't say that the law would allow emergency abortions after viability, Idahoans United spokesperson Melanie Folwell previously told States Newsroom.
And the short title uses the term 'fetus viability,' which is not the medical phrase, the initiative group argues. That conflicts with the long title's use of the term 'fetal viability,' the group argues.
Justices repeatedly asked Idaho's solicitor general why the attorney general's office used a different term than the initiative's policy.
Hurst said the AG's office believes fetal viability and fetus viability are essentially the same term.
At one point, Justice Robyn Brody questioned whether the language was meant to evoke the broader abortion debate.
Anti-abortion activists often call fetuses unborn children. But abortion-rights activists often frame abortion in terms of medical freedom for pregnant patients.
Hurst then referenced news writing standards by the Associated Press, a prominent international news wire outlet, that advise against using the terms 'pro life' and 'pro choice' in news articles.
'There are no neutral options here. To the extent the neutral options are here, its fetus viability — fetal viability,' Hurst replied. 'That's more favorable to their side than to ours. The AG has not used pro life language in this. He has done his utmost to use language that is consistent with the way the initiative frames things.'
Justice Cynthia Meyer soon pointed out that the Attorney General's Office's long title uses the term 'life of the unborn child.'
The bigger issue is with the fiscal impact statement, Folwell previously told States Newsroom.
The fiscal impact statement says the initiative wouldn't affect taxes or the state's general fund, but it says the initiative could minorly affect state expenses — in Medicaid and prisoner populations.
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'Passage of this initiative is likely to cost less than $20,000 per year. The Medicaid budget for providing services was about $850 million in FY2024,' the fiscal impact review said. 'If passed, nominal costs in the context of the affected total budget are insignificant to the state.'
Initiative organizers argue that's not true.
Justice Colleen Zahn pressed an attorney for Idahoans United on how the initiative wouldn't raise costs, since Idaho pays for Medicaid patients who need care from complications from abortion pills.
'There's no evidence that it would increase costs so as to increase any budget that doesn't already exist,' Henderson Haws said.
The fiscal analysis was prepared by the Idaho Division of Financial Management, an agency overseen by Idaho Gov. Brad Little.
After filing four proposed policies in August, Idahoans United for Women and Families narrowed its focus down to one policy that would establish a fundamental right to contraception and fertility treatments under Idaho law.
That would include:
in vitro fertilization;
making decisions about pregnancy and childbirth;
legalizing abortion before fetal viability; and
preserving the right to abortion after viability in medical emergencies.
Under the proposed initiative, fetal viability would be determined by a physician and what treatment is available. In the medical community, viability is generally considered to be between 23 to 24 weeks of gestational age.
Initiative organizers are collecting signatures in the hopes of qualifying the initiative to be considered by Idaho voters in the November 2026 general election.
A ballot initiative is a proposed law that Idaho voters can approve or reject — independent of the Idaho Legislature. Only the Legislature can propose constitutional amendments, unlike many other states.
To pass, the initiative would require a simple majority support from voters.
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They emphasize that he spends a great deal of time speaking privately with candidates and officials who seek his advice. But unfortunately for Democrats, they have not found their next fresh generational sensation since Obama was elected 17 years ago (Joe Biden obviously doesn't count). Until a new leader emerges, Obama could certainly take on a more vocal role without 'regularizing' himself in the lowlands of Trump-era politics. Obama remains the most popular Democrat alive at a time of historic unpopularity for his party. Unlike Biden, he appears not to have lost a step, or three. Unlike with Bill Clinton, his voice remains strong and his baggage minimal. Unlike both Biden and Clinton, he is relatively young and has a large constituency of Americans who still want to hear from him, including Black Americans, young voters, and other longtime Democratic blocs that gravitated toward Trump in November. 'Should Obama get out and do more? Yes, please,' Tracy Sefl, a Democratic media consultant in Chicago, told me. 'Help us,' she added. 'We're sinking over here.' Obama's conspicuous scarcity while Trump inflicts such damage isn't just a bad look. It's a dereliction of the message that he built his career on. When Obama first ran for president in 2008, his former life as a community organizer was central to his message. His campaign was not merely for him, but for civic action itself—the idea of Americans being invested in their own change. Throughout his time in the White House, he emphasized that 'citizen' was his most important title. After he left office in 2017, Obama said that he would work to inspire and develop the next cohort of leaders, which is essentially the mission of his foundation. It would seem a contradiction for him to say that he's devoting much of his post-presidency to promoting civic engagement when he himself seems so disengaged. To some degree, patience with Obama began wearing thin when he was still in office. His approval ratings sagged partway through his second term (before rebounding at the end). The rollout of the Affordable Care Act in 2013 was a fiasco, and the midterm elections of 2014 were a massacre. Obama looked powerless as Republicans in Congress ensured that he would pass no major legislation in his second term and blocked his nomination of Merrick Garland to the Supreme Court. 'Obama, out,' the president said in the denouement of his last comedy routine at the White House Correspondents' Dinner, in 2016. In Obama lore, this mic-drop moment would instantly become famous—and prophetic. After Trump's first victory, Obama tried to reassure supporters that this was merely a setback. 'I don't believe in apocalyptic—until the apocalypse comes,' he said in an interview with The New Yorker. Insofar as Obama talked about how he imagined his post-presidency, he was inclined to disengage from day-to-day politics. At a press conference in November 2016, Obama said that he planned to 'take Michelle on vacation, get some rest, spend time with my girls, and do some writing, do some thinking.' He promised to give Trump the chance to do his job 'without somebody popping off in every instance.' But in that same press conference, he also allowed that if something arose that raised 'core questions about our values and our ideals, and if I think that it's necessary or helpful for me to defend those ideals, then I'll examine it when it comes.' That happened almost immediately. A few days after vowing in his inaugural address to end the 'American carnage' that he was inheriting, Trump signed an executive order banning foreign nationals from seven predominantly Muslim countries from entering the United States for 90 days. The so-called Muslim travel ban would quickly be blocked by the courts, but not before sowing chaos at U.S. points of entry. Obama put out a brief statement through a spokesperson ('the president fundamentally disagrees with the notion of discriminating against individuals because of their faith or religion'), and went on vacation. Trump's early onslaught made clear that Obama's ex-presidency would prove far more complicated than previous ones. And Obama's taste for glamorous settings and famous company—Richard Branson, David Geffen, George Clooney—made for a grating contrast with the turmoil back home. 'Just tone it down with the kitesurfing pictures,' John Oliver, the host of HBO's Last Week Tonight, said of Obama in an interview with Seth Meyers less than a month after the president left office. 'America is on fire,' Oliver added. 'I know that people accused him of being out of touch with the American people during his presidency. I'm not sure he's ever been more out of touch than he is now.' Oliver's spasm foreshadowed a rolling annoyance that continued as Trump's presidency wore on: that Obama was squandering his power and influence. 'Oh, Obama is still tweeting good tweets. That's very nice of him,' the anti-Trump writer Drew Magary wrote in a Medium column titled 'Where the Hell Is Barack Obama?' in the early days of the coronavirus pandemic. 'I'm sick of Obama staying above the fray while that fray is swallowing us whole.' Obama did insert himself in the 2024 election, reportedly taking an aggressive behind-the-scenes role last summer in trying to nudge Biden out of the race. He delivered a showstopper speech at the Democratic National Convention and campaigned several times for Kamala Harris in the fall. But among longtime Obama admirers I've spoken with, frustration with the former president has built since Trump returned to office. While campaigning for Harris last year, Obama framed the stakes of the election in terms of a looming catastrophe. 'These aren't ordinary times, and these are not ordinary elections,' he said at a campaign stop in Pittsburgh. Yet now that the impact is unfolding in the most pernicious ways, Obama seems to be resuming his ordinary chill and same old bits. Green, of the Progressive Change Institute, told me that when Obama put out his March Madness picks this year, he texted Schultz, the Obama adviser. 'Have I missed him speaking up in other places recently?' Green asked him. 'He did not respond to that.' (Schultz confirmed to me that he ignored the message but vowed to be 'more responsive to Adam Green's texts in the future.') Being a former president is inherently tricky: The role is ill-defined, and peripheral by definition. Part of the trickiness is how an ex-president can remain relevant, if he wants to. This is especially so given the current president. 'I don't know that anybody is relevant in the Trump era,' Mark Updegrove, a presidential historian and head of the LBJ Foundation, told me. Updegrove, who wrote a book called Second Acts: Presidential Lives and Legacies After the White House, said that Trump has succeeded in creating a reality in which every president who came before is suspect. 'All the standard rules of being an ex-president are no longer applicable,' he said. Still, Obama never presented himself as a 'standard rules' leader. This was the idea that his political rise was predicated on—that change required bold, against-the-grain thinking and uncomfortable action. Clearly, Obama still views himself this way, or at least still wants to be perceived this way. (A few years ago, he hosted a podcast with Bruce Springsteen called Renegades.) From the July 1973 issue: The last days of the president Stepping into the current political melee would not be an easy or comfortable role for Obama. He represents a figure of the past, which seems more and more like the ancient past as the Trump era crushes on. He is a notably long-view guy, who has spent a great deal of time composing a meticulous account of his own narrative. 'We're part of a long-running story,' Obama said in 2014. 'We just try to get our paragraph right.' Or thousands of paragraphs, in his case: The first installment of Obama's presidential memoir, A Promised Land, covered 768 pages and 29 hours of audio. No release date has been set for the second volume. But this might be one of those times for Obama to take a break from the long arc of the moral universe and tend to the immediate crisis. Several Democrats I've spoken with said they wish that Obama would stop worrying so much about the 'dilution factor.' While Democrats struggle to find their next phenom, Obama could be their interim boss. He could engage regularly, pointing out Trump's latest abuses. He did so earlier this spring, during an onstage conversation at Hamilton College. He was thoughtful, funny, and sounded genuinely aghast, even angry. He could do these public dialogues much more often, and even make them thematic. Focus on Trump's serial violations of the Constitution one week (recall that Obama once taught constitutional law), the latest instance of Trump's naked corruption the next. Blast out the most scathing lines on social media. Yes, it might trigger Trump, and create more attention than Obama evidently wants. But Trump has shown that ubiquity can be a superpower, just as Biden showed that obscurity can be ruinous. People would notice. Democrats love nothing more than to hold up Obama as their monument to Republican bad faith. Can you imagine if Obama did this? some Democrat will inevitably say whenever Trump does something tacky, cruel, or blatantly unethical (usually before breakfast). Obama could lean into this hypocrisy—tape recurring five-minute video clips highlighting Trump's latest scurrilous act and title the series 'Can You Imagine If I Did This?' Or another idea—an admittedly far-fetched one. Trump has decreed that a massive military parade be held through the streets of Washington on June 14. This will ostensibly celebrate the Army's 250th anniversary, but it also happens to fall on Trump's 79th birthday. The parade will cost an estimated $45 million, including $16 million in damage to the streets. (Can you imagine if Obama did this?) The spectacle cries out for counterprogramming. Obama could hold his own event, in Washington or somewhere nearby. It would get tons of attention and drive Trump crazy, especially if it draws a bigger crowd. Better yet, make it a parade, or 'citizen's march,' something that builds momentum as it goes, the former president and community organizer leading on foot. This would be the renegade move. Few things would fire up Democrats like a head-to-head matchup between Trump and Obama. If nothing else, it would be fun to contemplate while Democrats keep casting about for their long-delayed future. 'The party needs new rising stars, and they need the room to figure out how to meet this moment, just like Obama figured out how to meet the moment 20 years ago,' Jon Favreau, a co-host of Pod Save America and former director of speechwriting for the 44th president, told me. 'Unless, of course, Trump tries to run for a third term, in which case I'll be begging Obama to come out of retirement.'
