Key Points

  • A divided Ninth Circuit panel stayed, pending appeal, a district court injunction that barred Idaho from enforcing its abortion bans against Dr. Stacy Seyb for abortions to prevent serious and lasting harm to a pregnant woman’s health or death from self-harm.
  • The unsigned majority order found Idaho made a strong showing of likely success because the district court’s history-and-tradition conclusion is unlikely to square with Dobbs, and a strong showing of irreparable injury based on Idaho’s interest in fetal life.
  • Judge Wardlaw concurred, writing that Dobbs closed the door on any constitutional abortion right and that the Ninth Circuit is bound by it.
  • Judge Berzon dissented, arguing that Roe and Casey recognized a separate life-or-health abortion right that Dobbs never addressed, and that Idaho showed no irreparable harm given the narrow injunction and the unappealed St. Luke’s EMTALA injunction.
  • The panel denied Seyb’s motion to vacate the partial stay, consolidated three appeals, and set briefing running from Dec. 18, 2026, into early 2027, with extensions strongly disfavored.

A divided federal appeals court on Oct. 30 allowed Idaho to resume enforcing its abortion bans against a doctor who had won a trial-court order letting him end pregnancies that threaten serious and lasting harm to a woman’s health. The court found Idaho likely to win on appeal under Dobbs v. Jackson Women’s Health Organization, the 2022 Supreme Court decision that overruled Roe v. Wade.

In an unsigned order, a panel of the U.S. Court of Appeals for the Ninth Circuit granted a stay pending appeal. Judges Wardlaw and Callahan formed the majority, and Judge Wardlaw also wrote a concurrence. Judge Berzon dissented.

The order means Idaho officials may again enforce the bans against Dr. Stacy Seyb where a pregnancy endangers a patient’s health but not her life, while the appeal is briefed into 2027. The dispute turns on whether Dobbs, in overruling Roe and Planned Parenthood v. Casey, also erased those decisions’ separate protection for abortions needed to preserve a woman’s life or health.

Dr. Seyb sued Idaho officials, including members of the Idaho Board of Medicine and county prosecuting attorneys, to stop them from prosecuting him for such abortions. After a bench trial, the U.S. District Court for the District of Idaho concluded that "legal tradition has consistently shielded health-preserving abortions from prosecution."

In an Aug. 13 decision, the district court barred enforcement of the Defense of Life Act and the Fetal Heartbeat Act where a physician determined that "continuation of the pregnancy poses a non-negligible risk of serious and lasting harm to the health of the pregnant woman." The injunction also covered a risk of "death of the pregnant woman from self-harm." The district court later stayed it as to everyone except Dr. Seyb.

Idaho Attorney General Raul R. Labrador, who intervened as a defendant, and Ada County Prosecuting Attorney Jan Bennetts then asked the Ninth Circuit for a complete stay. The panel granted a temporary stay and heard argument on Sept. 22.

The majority held that Idaho had made a strong showing on the two stay factors the court treats as most critical: likely success on the merits and irreparable injury without a stay. It wrote that the Supreme Court in Dobbs "plowed the same ground" as the district court’s historical review and held that "the Constitution does not confer a right to abortion."

"We think it unlikely that Dr. Seyb will be able to square the district court’s perspective on the history and tradition concerning abortions with the Supreme Court’s perspective in Dobbs," the order said.

On harm, the majority cited Idaho’s statutory "profound interest" in preserving fetal life. "This interest clearly outweighs the potential harm to Dr. Seyb of having to abide by Idaho’s law pending the resolution of this appeal," the panel wrote. It called Idaho’s case stronger still where the reason for an abortion is the possibility of suicide. "There are other methods for preventing suicide," the majority wrote.

Judge Wardlaw wrote separately that Dobbs "excoriated the reasoning of Roe and Casey and explicitly overruled them," foreclosing any constitutional abortion right, "particularly one as vague and ill-defined as the right pressed here." She added that "the dissent’s argument that such a right survives Roe and Casey was not before the district court."

She noted that Idaho’s ban allows abortions needed to prevent a woman’s death and in cases of rape or incest. A separate federal injunction, won by St. Luke’s Health System and not appealed by Idaho, requires the state to permit abortions mandated by the Emergency Medical Treatment and Labor Act, a federal law requiring emergency care. "As an intermediate court of appeals, we are bound by the decisions of the Supreme Court," Judge Wardlaw wrote.

Judge Berzon argued that Roe and Casey recognized two independent rights: a right to end a pregnancy for any reason, which Dobbs eliminated, and a right to abortion when necessary to preserve the woman’s life or health. She wrote that no party in the Dobbs litigation challenged the second right, and that the Supreme Court granted review only on whether all pre-viability bans on elective abortions were unconstitutional.

Responding to the majority’s reliance on the Dobbs "perspective," she wrote that perspectives "are not legal holdings." In her view, "every member of the Court took for granted that Dobbs was about the right to an elective abortion, and that right only." Even if Dobbs’s logic ultimately reaches health-preserving abortions, she wrote, "it remains up to the Supreme Court, not us, to so hold."

Judge Berzon also turned to the appendix of state abortion statutes the Dobbs majority compiled. Of its 51 statutes, she counted 41 that explicitly permitted abortions necessary to preserve the mother’s life. "How could Dobbs have by its broad language silently abrogated a right its reasoning affirmed?" she wrote.

On harm, Judge Berzon called the injunction "a narrow incursion into Idaho’s interest in protecting fetal life, applying only to one doctor." She wrote that the St. Luke’s injunction, which covers Dr. Seyb as a St. Luke’s physician, had been in place for 18 months without Idaho offering specific evidence of irreparable harm. She also wrote that "the panel majority conspicuously overlooks that Dr. Seyb asserts the constitutional rights of his patients."

With the stay in place, Judge Berzon wrote, "some women with serious pregnancy complications will during the pendency of this appeal be required to continue their pregnancies at serious, permanent risk to their health." She closed: "I respectfully, but emphatically, dissent."

The panel denied Dr. Seyb’s motion to vacate the district court’s partial stay. It treated his appeal, No. 26-6068, as a cross-appeal to the appeals by Labrador and Bennetts, Nos. 26-5360 and 26-5558, and consolidated the three appeals.

Labrador and Bennetts’s opening brief is due Dec. 18. Dr. Seyb’s brief is due Jan. 22, 2027, and the state defendants’ response, joined by the Board of Medicine members, is due Feb. 19, 2027. An optional final brief from Dr. Seyb is due 21 days after that. "Any request for an extension of time on the briefing schedule will be strongly disfavored," the panel wrote.