Seyb v. Labrador

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 30 2026 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS Doctor STACY SEYB, M.D., No. 26-5360 D.C. No. Plaintiff - Appellee, 1:24-cv-00244-BLW v. District of Idaho, Boise MEMBERS OF THE IDAHO BOARD OF MEDICINE, in their official capacities; et ORDER al., Defendants, RAUL LABRADOR, Intervenor-Defendant - Appellant. No. 26-5558 Doctor STACY SEYB, M.D., D.C. No. 1:24-cv-00244-BLW Plaintiff - Appellee, District of Idaho, v. Boise MEMBERS OF THE IDAHO BOARD OF MEDICINE; et al., Defendants, ADA COUNTY PROSECUTING ATTORNEY, Jan Bennetts, in her official capacity, Defendant - Appellant, RAUL LABRADOR,  Intervenor-Defendant. M.D. Doctor STACY SEYB, No. 26-6068 D.C. No. Plaintiff - Appellant, 1:24-cv-00244-BLW v. District of Idaho, Boise MEMBERS OF THE IDAHO BOARD OF MEDICINE, in their official capacities and ADA COUNTY PROSECUTING ATTORNEY, in their official capacity, Defendants - Appellees, ADAMS COUNTY PROSECUTING ATTORNEY; et al., Defendants, RAUL LABRADOR, Intervenor-Defendant - Appellee. Before: WARDLAW, BERZON, and CALLAHAN, Circuit Judges. Concurrence by Judge WARDLAW; Dissent by Judge BERZON Dr. Seyb brought this action seeking to enjoin Idaho officials from prosecuting him if he performed an abortion where pregnancy posed a non- negligible risk of serious and lasting harm to the health of the pregnant woman but would not be life threatening. After a bench trial, the district court determined that “the historical record shows that our legal tradition has consistently shielded 2 26-5360 health-preserving abortions from prosecution since the early days of the common law.” The court enjoined the enforcement of the Defense of Life Act, Idaho Code § 18-622, and the Fetal Heartbeat Act, Idaho Code § 18-8804, in cases where in the physician’s good faith medical judgment that continuation of the pregnancy posed a non-negligible risk “of serious and lasting harm to the health of the pregnant woman,” or of “death of the pregnant woman from self-harm.” The district court subsequently issued a partial stay of its injunction pending appeal, staying “enforcement of the challenged statutes against persons other than Dr. Seyb.” Idaho Attorney General, Raul R. Labrador, and the Ada County Prosecuting Attorney then filed an emergency motion for a complete stay of the district court’s injunction pending appeal. We granted a temporary stay, set a briefing schedule for a response and reply, and scheduled argument on the emergency motion for September 22, 2026. Having considered the parties’ filings and oral argument, we now issue a stay of the district court’s injunction pending appeal. In determining whether to issue a stay, we consider four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Reach Cmty. Dev. v. U. S. Dep’t of Homeland Sec., 174 F.4th 1143, 1146 (9th Cir. 2026) (quoting Nken v. 3 26-5360 Holder, 556 U.S. 418, 426 (2009)). ‘“The first two factors ... are the most critical,’ and the court will address the last two factors only once the applicant has satisfied the first two factors.” Washington v. U. S. Dep’t of Ed., 167 F.4th 1241, 1245 (9th Cir. 2026) (quoting Cmty. Legal Servs. in E. Palo Alto v. U.S. Dep't of Health & Hum. Servs., 137 F.4th 932, 937 (9th Cir. 2025)). Defendants have made a strong showing of likely success on the merits. The district court reviewed the history and tradition concerning abortions and concluded that “legal tradition has consistently shielded health-preserving abortions from prosecution.” However, the Supreme Court in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), plowed the same ground and held that “the Constitution does not confer a right to abortion.” Id. at 292. 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. Defendants also make a strong showing of irreparable injury absent a stay. The Supreme Court in Dobbs held that “the authority to regulate abortion must be retuned to the people and their elected representatives.” Id. At this time, Idaho has limited abortions to instances where “necessary to prevent the death of a pregnant woman.” Idaho Code § 28-622(2)(a)(i). Indeed, Idaho Code § 18-601 states that Idaho has a “profound interest” in preserving fetal life and prefers “by all legal 4 26-5360 means, live childbirth over abortion.” Accordingly, Idaho has a strong interest in limiting abortions to those allowed under its law. This interest clearly outweighs the potential harm to Dr. Seyb of having to abide by Idaho’s law pending the resolution of this appeal. Defendants’ showings of likelihood of success and irreparable injury are even stronger where the proffered reason for the abortion is the possibility of the woman committing suicide. There are other methods for preventing suicide, and Idaho’s “profound interest” in preserving fetal life reasonably supports the use of those means over the termination of pregnancy. Having determined that Defendants have made a strong showing of likelihood of success on the merits and irreparable harm absent a stay, we stay the enforcement of the district court’s injunction pending appeal. Consistent with this determination, Dr. Seyb’s motion to vacate the partial stay of the injunction is denied. To facilitate further proceedings in this litigation, we recognize Seyb v. Members of the Idaho Board of Medicine, Appeal No. 26-6068, as a cross appeal to Appeals Nos. 26-5360 and 26-5558, and we consolidate the three appeals. The following briefing schedule will apply to the three appeals: the first brief on cross appeal will be filed by Intervenor-Defendant-Appellant Raul Labrador and Defendant-Appellant Ada County Prosecuting Attorney Jan Bennetts 5 26-5360 and is due on December 18, 2026; the second brief on cross appeal will be filed by Plaintiff-Cross Appellant Stacy Seyb, M.D. and is due on January 22, 2027; the third brief on cross appeal will be filed by Intervenor-Defendant-Appellant Raul Labrador, Defendant-Appellant Ada County Prosecuting Attorney Jan Bennetts, and Defendant-Cross Appellee Members of the Idaho Board of Medicine, and is due on February, 19, 2027; and the optional fourth brief on cross appeal may be filed by Plaintiff-Cross Appellant Stacy Seyb, M.D. and is due within 21 days after service of the third brief on cross appeal. Any request for an extension of time on the briefing schedule will be strongly disfavored. 6 26-5360  FILED Seyb v. Labrador, et al., Nos. 26-5360+ OCT 30 2026 MOLLY C. DWYER, CLERK WARDLAW, Circuit Judge, concurring: U.S. COURT OF APPEALS Four years ago, in Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022), a majority of the Supreme Court held that “Roe and Casey must be overruled.” Id. at 231. The majority reasoned that the “Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” Id. The majority further held that any right implicitly guaranteed by the Fourteenth Amendment “must be deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty.” Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)) (internal quotations omitted). The majority then determined that the right to an abortion does not meet these criteria. Dobbs, 597 U.S. at 300 (“[P]rocuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.”). Thus, according to the Dobbs majority, Roe and Casey were “egregiously wrong” and stare decisis did not “compel” adherence to them. Id. at 231. The majority acknowledged that the question on which the Court granted certiorari in Dobbs was narrow—whether “all pre-viability prohibitions on elective abortions are unconstitutional.” Id. at 234. But the majority nonetheless chose to answer the 1 broader question of “whether the Constitution, properly understood, confers a right to obtain an abortion.” Id. It resisted Chief Justice Roberts’s suggestion that the Court “leave for another day whether to reject any right to an abortion at all.” Id. at 353 (Roberts, C.J., concurring in judgment). To the contrary, it determined that the best course of action was for the Court and the country to “face up to the real issue without further delay.” Id. at 300. The majority concluded by reiterating its holding that the Constitution does not prevent “the citizens of each State from regulating or prohibiting abortion.” Id. at 302. It emphasized that laws regulating or prohibiting abortion are subject to only rational basis review. Id. at 300. In summary, Dobbs excoriated the reasoning of Roe and Casey and explicitly overruled them, thus closing the door on finding any constitutional right to an abortion—particularly one as vague and ill-defined as the right pressed here. Even the dissenting Justices in Dobbs recognized the sweeping nature of the majority’s opinion. Id. at 360 (Justices Breyer, Sotomayor and Kagan, dissenting) (“Today, the Court . . . says that from the very moment of fertilization, a woman has no rights to speak of. . . . An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law.”). In this context, it is difficult to see how we could—as the dissent suggests—resurrect a secondary holding in Roe and Casey to the effect that the Constitution protects the right to an abortion “in cases where a physician has determined, in his or her 2 good faith medical judgment, that continuation of the pregnancy poses a non- negligible risk of serious and lasting harm to the health of the pregnant woman.” Seyb v. Members of the Idaho Bd. of Med., No. 1:24-CV-00244-BLW, 2026 WL 2374617, at *30 (D. Idaho Aug. 13, 2026). And even if we could somehow revive this secondary holding, the dissent’s argument that such a right survives Roe and Casey was not before the district court. Moreover, it is not clear that Idaho’s abortion ban is an outlier compared to the state abortion bans which existed during the Reconstruction Era and on which the Dobbs majority relied. See Dobbs, 597 U.S. at 248–49. Like many of those state abortion bans, Idaho’s ban includes an exception for abortions necessary to “prevent the death of the pregnant woman.” Idaho Code § 18-622(2)(a)(i). It also includes exceptions for abortions provided in cases involving rape or incest. Id. § 18-622(2)(b). And under the federal Emergency Medical Treatment and Labor Act (“EMTALA”), Idaho must 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.1 There may come a time when this Court is 1 In St. Luke’s Health Sys., Ltd. v. Labrador, 782 F. Supp. 3d 953 (D. Idaho 2025), a federal district court enjoined Idaho from enforcing its abortion ban when doing so would conflict with EMTALA’s mandate to provide emergency medical care. The injunction currently only applies to St. Luke’s Health System, but it requires that Idaho permit emergency medical providers to perform abortions “necessary to ‘stabilize’ a patient presenting with an ‘emergency medical condition’ as required 3 called upon to evaluate a state abortion ban solely under the minimal constitutional protections which remain post-Dobbs—including by determining whether a ban is so restrictive as to fall short of even the highly deferential standard of rational basis review. But that is not the question we decide at this juncture. As an intermediate court of appeals, we are bound by the decisions of the Supreme Court. As such, in light of the Dobbs majority opinion, I join Judge Callahan in concluding that Defendants have shown a likelihood of success on the merits. by EMTALA.” Id. at 987 (quoting 42 U.S.C. § 1395dd). Idaho has not appealed this injunction and thus remains bound by it. 4  FILED OCT 30 2026 Seyb v. Labrador, et al., Nos. 26-5360+ MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS BERZON, Circuit Judge, dissenting: The panel majority concludes that Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022), “plowed the same ground” as the district court, and so Dobbs’s “perspective on the history and tradition concerning abortions” likely precludes any constitutionally based right to abortion, even if premised on medical need. Majority at 4. I am convinced, as was the district court, that Dobbs does no such thing. To the extent the Supreme Court and the district court “plowed the same ground,” their historical inquiries may have covered similar terrain, but those inquiries’ objectives were entirely distinct. That is because Roe v. Wade, 410 U.S. 113 (1993), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), recognized two independent constitutional rights to an abortion. The first was a pregnant woman’s right, premised in a constitutional privacy interest in autonomous control of her body, to be free from state interference in deciding whether to continue or terminate her pregnancy, for any reasons that mattered to her. That is the elective abortion constitutional right on which certiorari was granted in Dobbs, see infra at 6, and which Dobbs eliminated. Roe and Casey also recognized, separately, a right to an abortion where “necessary, in appropriate medical judgment, for the preservation of the life or 1 health of the mother.” Casey, 505 U.S. at 879 (quoting Roe, 410 U.S. at 165). The Roe framework permitted a state to proscribe abortion after fetal viability “except when [abortion] is necessary to preserve the life or health of the mother.” Roe, 410 U.S. at 164 (emphasis added). Roe held that the life-or-health abortion right overcomes a state’s interest in protecting fetal life. See id. Casey explicitly “reaffirmed” that holding, 1 while introducing a slightly modified “significant health risks” standard. Casey, 505 U.S. at 879–80 (joint opinion of O’Connor, Kennedy, and Souter, JJ.).2 1 More precisely, it was Roe’s three-pronged “essential holding” that Casey “reaffirmed.” Casey, 505 U.S. at 846. The first prong was the elective abortion right; the separate second prong articulated the life-or-health abortion right: First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each. Id. 2 The Pennsylvania statutory health exception at issue in Casey — which Casey upheld — permitted abortions only in cases of “serious risk of substantial and irreversible impairment of major bodily function.” Casey, 505 U.S. at 879, 902. The Court read the excepted category as including “preeclampsia, inevitable abortion, and premature ruptured membrane,” among other conditions. Id. at 880. 2  Commentators are divided on how best to characterize this second right. Some have framed it as within the tradition of self-defense: “Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey secure not just a previability right to abortion as reproductive choice, but also a separate postviability right to abortion as medical self-defense when pregnancy threatens a woman’s life.” Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 Harv. L. Rev. 1813, 1816 (2007) (footnotes omitted). Others contend the right exists when an abortion is relatively safer, medically speaking, for the mother than pregnancy. See, e.g., Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. 291, 294, 342–44 (2007). Yet others eschew the language of rights and instead define the holding as a “constitutional life-or-health exception.” Stephen G. Gilles, Roe’s Life-or-Health Exception: Self-Defense or Relatively-Safety?, 85 Notre Dame L. Rev. 525, 526 (2010). I need not choose among those approaches. The important point for present purposes is that Roe and Casey held that the Constitution protects access to abortion necessary to preserve the pregnant woman’s life or health, apart from the privacy-based right to elect an abortion for personal reasons. Considered in isolation, brief language in the Dobbs opinion can be read to suggest that the Court overruled Roe and Casey in their entirety: “[T]he Constitution does not confer a right to abortion. Roe and Casey must be overruled.” 3 Dobbs, 597 U.S. at 292. The panel majority posits such a wall-to-wall reading of Dobbs, thinking it “unlikely that Dr. Seyb will be able to square the district court’s perspective . . . with the Supreme Court’s.” Majority at 4. But “perspective[s]” are not legal holdings. Id. The district court’s opinion in this case so recognized: Dobbs does not foreclose recognition of such a right. That decision explicitly addressed “elective abortions,” and the majority opinion contains no analysis whatsoever of abortions performed out of medical necessity. Dobbs, 597 U.S. at 234. Defendants extrapolate from a few uncontextualized remarks to argue for a sweeping resolution of an argument that the Supreme Court did not even consider. To be sure, Dr. Seyb’s action presents difficult questions. But Defendants cannot avoid the substance of the case through this disingenuous appeal to Dobbs. The medical and legal issues at stake are too profound to permit such a facile resolution. Seyb v. Members of the Idaho Bd. of Med., No. 1:24-CV-00244-BLW, 2026 WL 2374617, at *16 (D. Idaho Aug. 13, 2026). Like the district court, I am convinced, for several reasons, that Dobbs left open for future consideration the life-or-health abortion right separately recognized in Roe and Casey. I therefore emphatically dissent from the majority’s supposition to the contrary and so from its conclusion that the defendants are likely to succeed in this case. I A For starters, over the course of the Dobbs litigation, the constitutionality of the life-or-health abortion right was neither challenged nor addressed in the district 4 or circuit court. See Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536 (S.D. Miss. 2018), aff’d sub nom. Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019), rev’d and remanded, 597 U.S. 215 (2022). Nor could it have been. The Mississippi abortion ban at issue was explicitly directed at “nontherapeutic or elective abortion-on-demand,” Dobbs, 597 U.S. at 232 (quoting Miss. Code Ann. § 41-41-191(2)(a)); see also id. at 233. The Mississippi law permitted abortions in cases of “medical emergency,” Currier, 349 F. Supp. 3d at 538, defining medical emergency, much like the Pennsylvania statute in Casey, as “a condition in which, on the basis of the physician’s good faith clinical judgment . . . the continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function.” Miss. Code Ann. § 41-41- 191(3)(j); see also Casey, 505 U.S. at 879. As a result, there was no justiciable issue in the Dobbs litigation regarding the separate life-or-health abortion holding in Roe and Casey. The plaintiffs had no reason to invoke it and did not. The defendants had no cognizable interest related to it, as their statute was consistent with it. Consistent with the scope of the statute being challenged, the issue the defendants raised in the Supreme Court in Dobbs, and the issue on which certiorari was granted, was “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.” Petition for Writ of Certiorari, Dobbs, 597 U.S. 215 (No. 19- 5 1392) (emphasis added); Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619 (2021) (Mem.) (granting writ as to that question); Dobbs, 597 U.S. at 234; see also id. at 347 (Roberts, C.J., concurring in the judgment). No mention was made in the petition for certiorari of abortions performed to preserve the life or health of the mother. This gap was not filled at the briefing stage. 3 The Dobbs parties neither briefed nor argued the constitutionality of the life-or-health abortion right in the Supreme Court. See generally Transcript of Oral Argument, Dobbs, 597 U.S. 215 (No. 19-1392); Brief for Petitioners, Dobbs, 597 U.S. 215 (No. 19-1392); Brief for Respondents, Dobbs, 597 U.S. 215 (No. 19-1392); Reply Brief for Petitioners, Dobbs, 597 U.S. 215 (No. 19-1392). None of the over one hundred amicus briefs filed in Dobbs substantively considered the issue. 4 3 “Only the questions set out in the petition [for a writ of certiorari], or fairly included therein, will be considered by the Court.” Sup. Ct. R. 14(1)(a). 4 One amicus brief called on the Court to “not require or in any way suggest that,” “in restoring the States’ authority to prohibit abortion,” “the States must permit abortions sought because of the mental or psychological health of the pregnant woman, or because of undefined ‘health’ reasons.” Brief Amicus Curiae of the Prolife Center at the University of St. Thomas in Support of Petitioners at 2, Dobbs, 597 U.S. 215 (No. 19-1392). That argument turned on an asserted potential for “widespread abuse” of such exceptions, rather than on any suggestion of the right’s impropriety as a matter of constitutional law. Id. at 3; accord Brief of the Catholic Medical Association, et al., as Amicus Curiae in Support of Petitioners at 30–33, Dobbs, 597 U.S. 215 (No. 19-1392). Another brief, in a footnote, acknowledged that “[i]f the Court abolishes the right to elective abortion, it will need to reexamine, in an appropriate case, Roe’s unexplained holding that States must permit even post-viability abortions whenever necessary to preserve maternal 6  Nor was the gap filled in Dobbs itself. It never separately addressed the propriety of the life-or-health abortion right. The discussion in Dobbs’s stare decisis analysis covered only the elective abortion aspect of Roe and Casey. There was no mention of the separate life-or-health abortion holding as to any of the stare decisis factors considered. In particular, the discussion in Dobbs of why Roe and Casey’s privacy-based analysis lacked a basis in the Constitution did not conduct the quite different analysis that would be needed regarding whether the explicit protection of “life” in the Fourteenth Amendment includes a measure of protection for “physical injury.” Dobbs, 597 U.S. at 268–74. Dobbs mentioned the life-or- health abortion right only in explicating Roe. Id. at 271. Dobbs then “overrule[d]” Roe and Casey generally, without mentioning the separate holding in doing so. Id. at 231, 292, 302. The Supreme Court “has long stressed that ‘the language of an opinion is not always to be parsed as though we were dealing with [the] language of a statute.’” Brown v. Davenport, 596 U.S. 118, 141 (2022) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979)). Rather, “general language in judicial opinions should be read as referring in context to circumstances similar to the circumstances then life or health.” Brief of Amicus Curiae Professor Stephen G. Gilles in Support of Petitioners at 28 n.11, Dobbs, 597 U.S. 215 (No. 19-1392). That brief, although in support of the state, recognized that the life-or-health abortion issue was not before the Court and would have to be considered separately. 7 before the Court and not referring to quite different circumstances that the Court was not then considering.” Olivier v. City of Brandon, 607 U.S. 552, 565 (2026) (quoting Turkiye Halk Bankasi A.S. v. United States, 598 U.S. 264, 278 (2023)); see also Illinois v. Lidster, 540 U.S. 419, 424 (2004). That is a “maxim not to be disregarded,” as Chief Justice Marshall long ago admonished: [G]eneral expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399–400 (1821) (Marshall, C. J., for the Court). Given that the life-or-health abortion right was separately articulated in Roe and Casey and was beyond the scope of the Dobbs litigation, the question on which certiorari was granted, and the parties’ briefing and oral argument, we should have expected the Supreme Court to speak with clarity if it nonetheless meant to abrogate that right. Read in context — which is how we read opinions — the broad Dobbs statement overruled the elective abortion holding discussed throughout Dobbs, not the separate life-or-health holding barely mentioned. 8  The concurrences and dissent in Dobbs repeatedly recognize that the majority opinion did not reach a life-or-health abortion right. One member of the five-justice majority, for example, described Dobbs’s holding as limited to the “basic legality of pre-viability abortion.” Dobbs, 597 U.S. at 345 (Kavanaugh, J., concurring) (emphasis added). Roe and Casey expressly held the life-or-health abortion right applicable post-viability. Casey, 505 U.S. at 879 (quoting Roe, 410 U.S. at 165). Another member of the majority agreed that “[t]he Court well explains why, under our substantive due process precedents, the purported right to an abortion is not a form of ‘liberty’ protected by the Due Process Clause,” acknowledging that the Court did not consider whether the Due Process Clause’s guarantee of life protects a right to certain kinds of medically necessary abortions. Dobbs, 597 U.S. at 330 (Thomas, J., concurring) (emphasis added); see also id. at 334. Similarly, the Chief Justice, concurring only in the judgment, reprimanded the Court for “tak[ing] the dramatic step of altogether eliminating the abortion right first recognized in Roe.” Dobbs, 597 U.S. at 352 (Roberts, C.J., concurring in the judgment). But he defined the abortion right at issue — the right Mississippi initially “went out of its way to make clear that it was not asking the Court to repudiate entirely” — as “the right to choose whether to terminate a pregnancy,” not the right to an abortion in cases of medical need. Id. (emphasis added). 9 Mississippi’s subsequent expansion of the scope of its argument led it to assert, in the Chief’s words, that “a State should be able to prohibit elective abortions if a rational basis supports doing so.” Id. (emphasis added). That is the “dramatic step” the Chief castigated the majority for taking — not the step of vitiating a right to life-or-health preserving abortion care. That Dobbs did not address the life-or-health abortion right was noted by the dissenters, with no response on this point from the majority: This Court will surely face critical questions about how [its] test applies. Must a state law allow abortions when necessary to protect a woman’s life and health? And if so, exactly when? How much risk to a woman’s life can a State force her to incur, before the Fourteenth Amendment’s protection of life kicks in? Suppose a patient with pulmonary hypertension has a 30-to-50 percent risk of dying with ongoing pregnancy; is that enough? And short of death, how much illness or injury can the State require her to accept, consistent with the Amendment’s protection of liberty and equality? Dobbs, 597 U.S. at 393 (joint dissent of Breyer, Sotomayor, and Kagan, JJ.). The dissenters also wrote that “States may even argue that a prohibition on abortion need make no provision for protecting a woman from risk of death or physical harm,” Dobbs, 597 U.S. at 361 (emphasis added), recognizing that Dobbs did not so hold. In short, every member of the Court took for granted that Dobbs was about the right to an elective abortion, and that right only. That the Justices interchangeably referred to a “right to elect an abortion,” id. at 363, and a “right to 10 abortion” sans “elect”, id. at 406, is yet more evidence of that shared understanding. The panel majority’s conclusion otherwise simply misreads Dobbs. The Supreme Court has often reminded us that “[i]t is this Court’s prerogative alone to overrule one of its precedents . . . . Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Bosse v. Oklahoma, 580 U.S. 1, 3 (2016) (per curiam) (quoting United States v. Hatter, 532 U.S. 557, 567 (2001); Hohn v. United States, 524 U.S. 236, 252–53 (1998)). Even if Dobbs’s ratio decidendi for rejecting an elective abortion right turns out to entail the rejection of a health-preserving abortion right as well, it remains up to the Supreme Court, not us, to so hold. B There is another, related reason I cannot read Dobbs’s pronouncement that “Roe and Casey must be overruled” as all-comprehensive, Dobbs, at 292, and so as reaching the separate Roe/Casey ruling regarding abortions performed to preserve the life or health of the mother. Were that so, Dobbs would have overruled Roe and Casey even for abortions necessary to preserve the life of the woman. On that understanding, a state could proscribe such abortions without running afoul of the Fourteenth Amendment’s dictate that “No State shall . . . deprive any person of life 11 . . . without due process of law.” U.S. Const. amend. XIV, § 1. That cannot be, and Dobbs certainly did not reach that result. To the contrary: setting aside the health preservation abortions most directly at issue in this case, Dobbs’s history and tradition analysis makes clear beyond doubt that abortions preserving the mother’s life have historically been protected. That analysis confirms that abortions performed to protect the mother’s life were traditionally shielded from the abortion bans the Dobbs opinion discusses. The Dobbs opinion puts load-bearing weight on a headcount of state criminal abortion statutes in the years before and after 1868.5 By the majority’s count, in 1868, 28 of 37 states had criminalized abortion by statute, and eight of the remaining nine did so by 1910. Dobbs, 597 U.S. at 248–49. All 13 extant territories between 1850 and 1919 criminalized abortion, too. Id. at 249. That “overwhelming consensus” — an “unbroken tradition of prohibiting abortion on pain of criminal punishment” — was the basis for Dobbs’s rejection of the elective abortion right. Id. at 249–50. But a straw poll of the state statutes in Dobbs’s appendix conclusively demonstrates otherwise with regard to life-preserving abortions. Dobbs compiled 51 abortion statutes, one for each state, state-to-be, and the District of Columbia. 5 Idaho agrees that “[t]he proper analysis centers on ‘how the States regulated abortion when the Fourteenth Amendment was adopted.’” 12 Of those 51 statutes, 41 explicitly permitted abortions necessary to preserve the life of the mother. Of the remaining ten, nine implicitly permitted life-saving abortions by codifying the common law standards — that an abortion is criminal if undertaken “maliciously,” “unlawfully,” “without lawful justification,” or “feloniously” — understood universally by state courts to allow mother-life- preserving abortions. One statute cited in Dobbs, the Colorado Territory’s 1861 abortion ban, included no such exception. 1861 Terr. of Colo. Gen. Laws pp. 296– 297. But an 1867 amendment, not cited in Dobbs, incorporated an explicit life and health exception. Colo. Rev. Stat. ch. 22 § 42 (1867). The “overwhelming consensus” of Dobbs’s own sources supports a fundamental right to a life- preserving abortion. How could Dobbs have by its broad language silently abrogated a right its reasoning affirmed? The panel majority cannot have it both ways. It cannot adopt a literal reading of a few out-of-context sentences in Dobbs while, in the same breath, inferring a life-preserving abortion right that such a reading would not countenance. As it cannot be that Dobbs overruled the life-preserving abortion right, it also cannot be that Dobbs’s broad language in a handful of sentences encompassed the health-preserving abortion right. Life and health are part and parcel of the same, separate fundamental right in Roe and Casey: to obtain medically necessary 13 abortion care. Unless and until the Supreme Court says otherwise, the degree to which that holding survives Dobbs is an open question. Whether the life-or-health abortion right encompassed the risk of death from self-harm due to mental health issues is a more difficult question. Casey noted in a different context that “psychological well-being is a facet of health.” Casey, 505 U.S. at 882. And Roe’s companion case, Bolton, noted with respect to the elective abortion right that “medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient. All these factors may relate to health.” Doe v. Bolton, 410 U.S. 179, 192 (1973), abrogated by Dobbs, 597 U.S. 215 (2022). Every circuit court to consider the issue interpreted the life-or-health abortion right to extend to mental health. See Women’s Med. Pro. Corp. v. Voinovich, 130 F.3d 187, 210 (6th Cir. 1997); Am. Coll. of Obstetricians & Gynecologists, Pennsylvania Section v. Thornburgh, 737 F.2d 283, 299 (3d Cir. 1984), aff’d sub nom. Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986); Womens Servs., P.C. v. Douglas, 710 F.2d 465, 465 (8th Cir. 1983) (per curiam). So at this early stage of this appeal, I would proceed on the basis that the Roe and Casey life-or-health abortion right encompassed mental health too, and that Dobbs left open the 14 protection accorded such abortions.6 Defendants have not at this juncture made a strong showing that they are likely to succeed on the merits of their contention that Dobbs forecloses further inquiry. C As to that further inquiry: Dobbs did establish the required methodology — history and tradition. The panel majority does not conduct any such inquiry. The majority regards Dobbs as having decided — without any separate history-and- tradition inquiry — that health-preserving abortions trigger no heightened constitutional protection. The district court conducted an extensive history-and-tradition inquiry, consulting, among other sources, myriad common law authorities, ratification-era abortion statutes, contemporaneous court decisions, nineteenth century medical sources, and more recent developments in the law of abortion. In so doing, it found “strong evidence of a fundamental right to abortion when necessary to prevent serious and lasting harm to the health of the pregnant woman.” Seyb, 2026 WL 2374617, at *26. In my view, Idaho has not made a strong showing that the district 6 I note that I am somewhat dubious that Dr. Seyb has standing to challenge the self