Health Law Daily Wrap Up, GENERAL HEALTH CARE NEWS—9th Cir.: Panel majority stays injunction against Idaho enforcing abortion bans in medical judgment situations, (Nov 3, 2026)

By Justin Marcus Smith, J.D.

The dissenting judge diverged on whether Dobbs overruled “secondary” or separate holdings in Roe and Casey for abortions preserving the life or health of the mother.

A panel majority of the U.S. Court of Appeals for the Ninth Circuit stayed, pending appeal, a district court injunction that stopped Idaho from enforcing its Defense of Life Act and Fetal Heartbeat Act in instances of serious risk, short of life-threatening harm, to the health of the mother. The panel majority primarily reasoned that Idaho officials showed a likelihood of success that Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), which overturned Roe v. Wade, 410 U.S. 113 (1973), effectively shut the door on finding any constitutional right to an abortion. However, a dissenting opinion reasoned that Idaho had not made a strong showing that Dobbs overruled separate holdings in Roe and in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), for a right to abortion to preserve the life or health of the mother, or, otherwise, that history and tradition did not support a right to such abortions. Moreover, the dissenting judge regarded Idaho’s demonstration of irreparable harm as “decidedly weak,” particularly when balanced against irreparable harm to the physician’s patients (Seyb v. Members of the Idaho Board of Medicine, Nos. 26-5360, 26-5558, and 26-6068 (9th Cir. Oct. 30, 2026)).

Background. A board-certified maternal-fetal medicine physician licensed to practice in Idaho sued the Idaho Board of Medicine and 41 Idaho county prosecutors (collectively, the Idaho officials) individually and on behalf of his patients. The physician sought to enjoin the Idaho officials from prosecuting him if he performed an abortion in instances where pregnancy might pose a serious risk, short of life-threatening harm, to the health of the mother. The physician specifically alleged that enforcement of Idaho’s two abortion bans, the Defense of Life Act (DLA), Idaho Code § 18-622, and the Fetal Heartbeat Act (FHA), Idaho Code § 18-8804, violated due process under the Fourteenth Amendment. The DLA criminalizes abortions provided at any stage of pregnancy, albeit it has a narrow exception for the life of the pregnant person when a physician has determined that it would be necessary to prevent the death of the mother.

Previously, the district court largely denied the Idaho officials’ motion to dismiss, but it did dismiss prosecutors responsible for law enforcement in counties in which the physician did not practice, for lack of standing. The court concluded the physician adequately alleged that the abortion bans violated the due process and equal protection clauses of the Fourteenth Amendment in a way that was not narrowly tailored to serve a compelling government interest (see Suit challenging the constitutionality of Idaho’s abortion bans can proceed, Apr. 9, 2025).

After a bench trial, the district court enjoined DLA and FHA enforcement in cases of a physician’s good faith medical judgment that continuation of the pregnancy would pose a non-negligible risk of serious and lasting harm to the health of the mother or lead to the mother’s death from self-harm.

The district court later issued a partial stay of its injunction, as to non-parties, pending appeal. The Idaho Attorney General and the Ada County Prosecuting Attorney then filed an emergency motion for a complete stay pending appeal. The Ninth Circuit granted a temporary stay, scheduled argument on the emergency motion for September 22, 2026, and the panel majority ultimately issued a total stay of the district court’s injunction pending appeal.

Stay decision. The Ninth Circuit panel majority found the Idaho officials made a strong showing of likely success on the merits of their appeal of the district court injunction. The district court reasoned that legal tradition has consistently shielded health-preserving abortions from prosecution, but the panel majority noted how the Supreme Court in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), reviewed the same legal history and held there was no constitutional right to an abortion. The Ninth Circuit panel majority accordingly concluded the physician was unlikely to square the district court’s perspective on the history and tradition concerning abortions with the Supreme Court’s perspective in Dobbs.

The Ninth Circuit also found the Idaho officials made a strong showing of irreparable injury, absent a stay, chiefly because the Idaho legislature codified, at Idaho Code § 18-601, that Idaho has a “profound interest” in preserving fetal life and prefers “by all legal means, live childbirth over abortion.” In the majority view, this stated interest of the Idaho government clearly outweighed the potential harm to the physician of having to abide by the DLA and FHA abortion laws pending appeal.

The panel majority continued that the Idaho officials’ showings of likely success and irreparable injury were even stronger where the proffered reason for the abortion is the possibility that the mother might harm herself. The Idaho officials convinced the Ninth Circuit that there are other methods for preventing suicide, and Idaho’s “profound interest” in preserving fetal life reasonably supported the use of those means in lieu of abortion.

The panel majority, having determined that the Idaho officials made a strong showing of likely success on the merits with irreparable harm absent a stay, granted a stay of the enforcement of the district court injunction pending appeal. The Ninth Circuit denied the physician’s motion to vacate the partial stay. The Ninth Circuit also consolidated a total of two appeals and one cross appeal and set a briefing schedule.

Concurring opinion. A concurring judge agreed that the Ninth Circuit, as an intermediate court of appeals, must follow Dobbs. In his view, Dobbs effectively shut the door on finding any constitutional right to an abortion. It was hard to see how the Ninth Circuit could resurrect a secondary holding in Roe and Casey for protecting the health of the mother. The instant dissent, that such a right survives Roe and Casey, was not even before the district court.

Moreover, it was not clear that the DLA was an “outlier” compared to state abortion bans that existed during the Reconstruction Era on which the Dobbs majority relied. The DLA includes an exception for abortions necessary to prevent the mother’s death and for instances of rape or incest. The concurring opinion noted the Emergency Medical Treatment and Labor Act (EMTALA) also requires Idaho to permit many of the state’s medical personnel to provide abortions in medical emergencies, even where Idaho’s abortion ban would otherwise proscribe such abortions.

Dissenting opinion. The dissenting opinion was based on the grounds that the district court was correct in analyzing that Dobbs left standing a separate right to an abortion where necessary, in medical judgment, to preserve the life or health of the mother, pursuant to Roe and Casey. Some commentators have characterized this separate right as within the tradition of self-defense. Others say the right exists when an abortion is relatively medically safer for the mother than pregnancy. Yet others avoid a rights framework and instead define the holding as a constitutional life-or-health exception. There was no need to choose here. The important point, in the dissent’s view, was that Roe and Casey held that the Constitution protects access to abortion as necessary to preserve the life or health of the mother, as distinct from the privacy-based right to elective abortion that Dobbs more specifically overturned.

Whether the life-or-health abortion right also encompassed the risk of death from self-harm due to mental health issues posed a more difficult question, but the Idaho officials did not make a strong showing of likely success on the merits of their contention that Dobbs foreclosed further inquiry.

In any event, Dobbs did establish that the court must look at history and tradition, and the Idaho officials did not make a strong showing that the district court was wrong in applying that decision method. The critical question was whether “life” exceptions encompassed abortions necessary to preserve the mother’s health, defined narrowly by the district court as referring to “serious and lasting harm.” The district court concluded they did, and Idaho did not make a strong showing otherwise.

The dissenting opinion also concluded that Idaho had not shown irreparable injury during pendency of the appeals. First, federal courts are obligated to enjoin state officials from enforcing a state law that violates a constitutional right. Second, the scope of the district court injunction, as limited by the partial stay order, affected Idaho’s interest to a minor degree: pending appeal, Idaho may not prohibit one specific doctor from performing abortions to ameliorate the risk of serious and lasting harm to pregnant patients’ health or to alleviate the risk of his pregnant patients’ death from self-harm. Further, the 18-month preliminary injunction in the EMTALA litigation, St. Luke’s Health Sys., Ltd. v. Labrador, 782 F. Supp. 3d 953, 987 (D. Idaho 2025), permits the instant physician to perform abortions necessary to stabilize a patient presenting with an emergency medical condition as EMTALA requires. Idaho did not appeal, and that preliminary injunction remains in place.

The dissent continued that there were relatively few potential abortions covered by the instant injunction but not the one in St. Luke’s with respect to conditions that threaten a pregnant woman’s physical health. The instant injunction during pendency of the instant appeals was a “narrow incursion into Idaho’s interest in protecting fetal life” that applied to one specific doctor and only to the limited degree to which the EMTALA injunction does not apply to health-protective abortions.

Last, and “critically,” the panel majority overlooked that the physician asserted the constitutional rights of his patients. The Ninth Circuit has repeatedly held that the deprivation of constitutional rights “unquestionably constitutes irreparable injury.” The potential for lasting patient harm short of death also represented an irreparable injury, by definition.

The case is Nos. 26-5360, 26-5558, and 26-6068.

Judge: Per curiam.

Attorneys: Kelly O'Neill (Derrevere Stevens Black & Cozad) for Stacy Seyb.

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