Has an Idaho Doctor Discovered a Loophole in <em>Dobbs</em>?

Jurisprudence

June 16, 2026 5:45 AM

The answer may be in Dobbs .

Photo illustration by Slate. Photo by Tiziana Fabi/AFP via Getty Images.

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Last week, an Idaho doctor challenging vague exceptions in the state’s abortion ban testified at the start of a major trial that will test a surprising question: Four years after the fall of Roe v. Wade , is there actually some right to abortion that the federal Constitution still protects?

The plaintiff in the case, Stacy Seyb , practiced medicine at St. Luke’s Hospital in Boise for more than 20 years before the U.S. Supreme Court overturned Roe v. Wade . He specializes in treating high-risk pregnancies, from cases of eclampsia, hypertension, or gestational diabetes to patients with multiple fetuses. But under Idaho law, any physician who acts to “cause the death of the unborn child ” violates the law, even when providing emergency care to patients with desperately wanted pregnancies.

To an extent that few, if any, contemplated, the court’s decision in Dobbs v. Jackson Women’s Health Organization has put the burden of Roe ’s reversal on Seyb’s patients—patients seeking to bear children. While many women have circumvented abortion bans by utilizing telehealth options and abortion pills , those bans have inflicted harms on women seeking to bear children that cannot be so easily evaded. Physicians treating patients with wanted pregnancies and serious complications are chilled by the threat of criminal prosecution. That has led to a lower quality of care for miscarrying patients , pregnant women being denied treatment for cancer , and women in labor being turned away from emergency rooms or being airlifted out of state . Problems of this very kind led Dr. Seyb to ask whether the Constitution—even in the wake of Dobbs —provides protection to physicians and their patients when state criminal law jeopardized a pregnant woman’s life or health .

Lawyers for Seyb and other plaintiffs in the Idaho case emphasize that Dobbs does not appear to be a barrier to advancing these constitutional claims. The question that the Supreme Court answered in 2022 was whether “all pre-viability prohibitions on elective abortions are unconstitutional .” In focusing on elective abortion procedures, the court didn’t address all procedures for terminating a pregnancy.

The history of the term “elective abortions” illustrates just how ambiguous the term “abortion” is, a central issue in Seyb’s case. The medical profession played an important role in advocating laws banning abortion in the mid-19 th century, which typically contained life exceptions. Courts enforcing this new body of law judged terminations for saving a woman’s life as lawful and interpreted that exception expansively, giving doctors in good professional standing considerable discretion in determining when terminating pregnancy was needed . Physicians popularized the distinction between “elective” and “therapeutic” or medically indicated abortions in the 1950s and 1960s to shield themselves from prosecutions and lawsuits, distinguishing needed abortions for sympathetic patients from “elective” procedures that hospital committees would refuse.

Then and now, the line between elective and therapeutic abortion has never been based on science alone. Exactly what kinds of injuries must a pregnant woman suffer before a termination is lawful?

All this contributes to the confusion about what the Supreme Court decided in striking down Roe . Dobbs in fact rejected only a right to an “elective” abortion. Avoiding death or serious medical harm might be different, even for the current Supreme Court. That’s exactly the constitutional argument Seyb is pressing.

In May 2024, Seyb filed a federal lawsuit arguing that the federal Constitution protects a right to abortion when a patient faces “serious medical risks or the pregnancy is medically futile.” Idaho tried to have the case thrown out . The state pointed to Dobbs , which held that any right not enumerated in the Constitution had to be deeply rooted in the nation’s history and tradition. Dobbs said the right to abortion failed this test, Idaho argued, demonstrating Seyb had no case.

In a decision last February, though, District Judge Lynn Winmill disagreed, speaking about doctors’ rights and women’s rights in the language of self-defense . The judge emphasized that Dobbs focused on a right to elective abortion, while Seyb’s case “tests how far Idaho may go when a woman’s pregnancy severely endangers her health.” The case was not about “the general right to abortion,” he explained, “but the right to self-preservation.”

Dobbs analyzed the q…