A panel of federal appeals judges will soon decide whether to continue to allow full enforcement of Idaho's abortion bans, or to allow a lower court's previous ruling that provided more exemptions to the law.

U.S. Court of Appeals for the Ninth Circuit Judges Kim McLane Wardlaw, Marsha Berzon and Consuelo Callahan heard oral arguments in a virtual hearing Tuesday afternoon.

The state of Idaho, represented by an attorney from the conservative Christian legal advocacy group Alliance Defending Freedom, argued that the laws should be fully enforced as written.

Idaho's laws prohibit most abortions, except in cases to prevent the death of the mother or in cases of rape and incest in the first trimester with a police report. Doctors face felony penalties and civil lawsuits of a minimum of $20,000 if they perform the procedure outside those exemptions.

ADF attorney Mathew Hoffmann argued that a lower court's previous ruling that would've expanded exemptions to apply to serious health and mental health risks to the mother was not grounded in historical precedent. He said there is no right to "therapeutic" abortions.

Attorneys representing Boise maternal-fetal medicine specialist Dr. Stacy Seyb argued that an earlier court decision from U.S. District of Idaho Judge B. Lynn Winmill should go back into effect. The ruling would've prevented the Ada County prosecutor and Idaho attorney general from enforcing Idaho's abortion ban in cases where the mother's health faced serious risk or her life was at risk due to self-harm.

Winmill later narrowed this block on enforcement to only protect abortions performed by Seyb.

After Attorney General Raúl Labrador appealed, a Ninth Circuit panel placed a hold on Winmill's order, and the law went back into effect.

Hoffmann said Winmill's decision expanding the exemptions created "an abortion-on-demand regime."

"They leave it up to the subjective judgment of doctors to determine a risk sufficient to justify abortion," he said.

Stephanie Toti, executive director of the Lawyering Project, argued on behalf of Seyb that the expanded exemptions to the law were necessary.

"The injunction entered by the district court in this case is narrow. It would enable only a small number of patients each year to obtain an abortion," Toti said. "But for those patients, access to that care is vitally important, as the district court found."

Judges question Dobbs interpretation, abortion rights initiative, legal guidance

Judges questioned the attorneys on whether the U.S. Supreme Court's 2022 Dobbs decision, which overturned Roe v. Wade and sent regulation of abortion to the states, would allow a court to expand a state's exemptions.

Hoffmann argued that it would not, because the Constitution does not explicitly provide a right to abortions.

Toti argued that the 2022 decision did not mention rights to life and health, which she said are violated by the Idaho ban's limited exemptions.

Callahan questioned Toti over whether the request to allow abortions for serious risk of self-harm was "weaker" than the other arguments.

"We have a right to life, but you don't have a right to kill yourself, right?" Callahan asked.

Toti responded that patients seeking an abortion to prevent death by self-harm "don't want to kill themselves."

"They want to remain alive. That's why they want the abortion care to avoid serious relapse of psychiatric illness," Toti said.

Wardlaw asked if Labrador planned to issue guidelines for doctors for following the law, which he has not done. Hoffmann said there's "sufficient guidance out there for doctors."

Callahan asked whether the potential passage of Proposition 1 — a ballot initiative voters will decide on in the Nov. 3 general election that would repeal Idaho's abortion bans as well as enumerate other rights related to reproductive health care — would "moot the challenge."

Hoffmann said it wouldn't.

"It wouldn't go into effect until January, and so there would be ongoing injury if the injunctions continue against Idaho's current law," he said. "We don't know if the initiative is going to pass, so it certainly doesn't moot this motion."