University of Idaho College of Law

Sullivan, Edward J.

English

WILL HOUSING BECOME THE INFLECTION POINT FOR REALIGNMENT OF STATE LAND USE STRUCTURES

Miller, Stephen R.

CAN AMERICA’S FASTEST-GROWING CITY SAVE ITSELF? PROPERTY RIGHTS AND THE PLANNING ETHIC IN BOISE, IDAHO

Hedden-Nicely, Dylan R.

Brief of Tribal Nations and Indian Organizations as Amici Curiae in Support of the Navajo Nation

Dansie, Thomas F.

Dansie, Daniel C.

PLANNING FOR RAPID GROWTH IN SMALL AND RURAL COMMUNITIES IN THE INTERMOUNTAIN WEST: IDENTIFYING CHALENGES AND SOLUTIONS IN THE LAND USE CONTEXT

Connolly, Brian J.

Peters, Andrew L.W.

Aggeler, Heidi

Bueno, Avilia

Jones, Julia

Daggett, Susan

TACKLING THE AFFORDABILITY CRISIS IN THE WEST: THE COLORADO HOUSING AFFORDABILITY PROJECT AND THE CHALLENGE OF ZONING REFORM

McQuade, Robert

Ruen, Justin

Idaho Law Review Volume 58 Number 3 Article 2 January 2022 IDAHO’S RAPID GROWTH BRINGS CHALLENGES AND OPPORTUNITIES Robert McQuade Justin Ruen Follow this and additional works at: https://digitalcommons.law.uidaho.edu/idaho-law-review Recommended Citation Robert McQuade & Justin Ruen, IDAHO’S RAPID GROWTH BRINGS CHALLENGES AND OPPORTUNITIES, 58 IDAHO L. REV. (2022). Available at: https://digitalcommons.law.uidaho.edu/idaho-law-review/vol58/iss3/2 This Article is brought to you for free and open access by Digital Commons @ UIdaho Law. It has been accepted for inclusion in Idaho Law Review by an authorized editor of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu. IDAHO’S RAPID GROWTH BRINGS CHALLENGES AND OPPORTUNITIES ROBERT MCQUADE* & JUSTIN RUEN** Idaho and its cities are attracting record numbers of new residents.  The unprecedented growth Idaho has seen over the past several years has been well documented.1 While Meridian and Nampa, respectively the state’s second and third largest cities by population, have been national leaders in growth for several years, six other smaller Idaho cities have cracked the top 200 cities in growth.2   Not even twenty years ago, many of these cities were small agricultural hubs that did not envision the interest they would receive from people seeking to live in their communities.3 With these new residents has come new needs for the services government provides, particularly public safety and infrastructure,4 and cities and other local service providers have struggled to keep up with the demand as new residents have moved in. These services and infrastructure are in place for a variety of reasons, as a result of environmental regulatory requirements5 or as amenities  * General Counsel, Association of Idaho Cities ** Senior Policy Analyst, Association of Idaho Cities 1. Press Release, U.S. Census Bureau, New Vintage 2021 Population Estimates Available for the Nation, States and Puerto Rico (Dec. 21, 2021), https://www.census.gov/newsroom/press-releases/2021/2021-population-estimates.html?utm_campaign=20211221msprts1ccpuprs&utm_content=&utm_medium=email&utm_source=govdelivery (“Idaho had the fastest annual and cumulative population increase, growing by 2.9% (53,151) in the last year, and by 3.4% (61,817) since April 1, 2020.”).  2. Star's Population Grows by More Than 90 Percent in 10 Years, IDAHO NEWS 6 (July 18, 2021, 7:14 AM), https://www.kivitv.com/news/state-of-208/stars-population-grows-by-more-than-90-percent-in-10-years (“Nationwide, there are 3,093 cities with populations larger than 10,000. When those cities are ranked based on their percentage growth between 2019 and 2020, eight of the top 200 fastest-growing cities are in Idaho. Kuna (43), Post Falls (46), Star (55), Eagle (65), Meridian (70), Nampa (151), Ammon (167), and Caldwell (171) all have growth rates ranging from 7.5% to 3.5%.”). 3. Betsy Z. Russell, Star Is Ground Zero for Growth in the Treasure Valley, IDAHO PRESS (Sept. 1, 2019), https://www.idahopress.com/news/local/star-is-ground-zero-for-growth-in-the-treasure-valley/article_878896ca-6670-538d-af75-097ce561d9ca.html. 4. COMMUNITY PLAN. ASS’N OF SW. IDAHO, TREASURE VALLEY ANNUAL CONGESTION MANAGEMENT SYSTEM REPORT, 2020 4 (2021), https://www.compassidaho.org/documents/prodserv/reports/2020_Congestion_Management_Annual_Report.pdf 5. CATO INSTITUTE, THE CATO HANDBOOK FOR CONGRESS 65 (1995) (“Some of the more costly unfunded mandates include the Americans with Disabilities Act, the Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, and the Fair Labor Standards Act. Like most federal mandates, those measures tend to impose the same inflexible, one-size-fits-all requirements on jurisdictions as diverse as New York City and the state of North Dakota.”) 476 IDAHO LAW REVIEW VOL. 58  modern commerce expects and needs. Nevertheless, they are services and infrastructure that a modern American has come to regard as fundamental.6 More people mean more calls for service for law enforcement and fire protection, new or expanded drinking water and wastewater infrastructure needs, and more wear and tear on our roads. All of these services and infrastructure come with a cost that only increases year over year. This demand for infrastructure, coupled with the ever-increasing cost of building and maintaining it, has caused some cities to question whether it is more cost effective to turn paved roads back into gravel. As Idaho leaps into the 21st Century, many city leaders are searching for the funds to pay for the services and infrastructure necessary to facilitate this growth.7  During Idaho’s early history as a territory and state, the property tax was the primary revenue source to support state and local government. The first attempt to diversify state revenues came in 1931 during the Great Depression, when the state of Idaho passed an income tax under the banner of property tax relief.8 In 1936, the state also tried passing a sales tax that was defeated in a statewide referendum that put the sales tax out of reach until Governor Smylie’s administration in 1965.9 At the state and local level, Idaho’s three-legged tax stool, encompassing property taxes, sales taxes, and income taxes, has served the state well by providing revenue sources that offer predictability and stability during economic downturns (property taxes), and revenue growth when the economy is growing (sales and income taxes).10     In 1967, following voter approval of a state sales tax, Idaho began sharing sales tax revenue with local governments after repealing the property tax on business inventory.11 Similarly, the state shares a portion of its revenue from the  6. Farhad Pooran, Adapt to Succeed, ROADS & BRIDGES MAG. (May 14, 2015), https://www.roadsbridges.com/adapt-succeed (“Traffic-signal retiming is one of the most cost-effective ways to improve traffic flow and one of the most basic strategies to help mitigate congestion.” A Florida study with adaptive traffic management software found “[t]he study results for U.S. 19 indicate a $600,000 annual savings in fuel costs to the motorist, while the study results for S.R. 60 demonstrate a $750,000 annual savings in fuel costs to the motorist.”). 7. AM. SOC’Y CIV. ENGINEERS, REPORT CARD FOR IDAHO’S INFRASTRUCTURE 4 (2018), https://infrastructurereportcard.org/state-item/idaho/ (“In total, Idaho has identified needed repairs on 1,520 bridges, and the state estimates the cost of repair to these bridges will total $2.2 billion.”). “The Environmental Protection Agency estimates Idaho will need $961.8 million over 20 years to maintain, repair and replace its existing drinking water infrastructure and accommodate a larger population.” Id. at 13. “Over the next 20 years, the state will experience a $3.6 billion shortfall if funding [for highways and roads] remains stagnant.” Id. at 23. There is a $301 million funding gap in estimated school capital expenditures. Idaho 2018 Report: Key Facts About Idaho’s Infrastructure, INFRASTRUCTURE REPORT CARD, https://infrastructurereportcard.org/state-item/idaho/ (last visited June 5, 2022). 8. RANDY STAPILUS & JAMES B. WEATHERBY, GOVERNING IDAHO: POLITICS, PEOPLE AND POWER 187 (2005).   9. Jim Weatherby, From Benny’s Penny to Luna’s Laws, LEWISTON TRIB. (Nov. 16, 2012), https://lmtribune.com/opinion/from-bennys-penny-to-lunas-laws/article_5f3e359c-ec26-5df0-9ae1-4aa2d19529ed.html; see also Stapilus & Weatherby, supra note 8, at 187. 10. STAPILUS & WEATHERBY, supra note 8, at 187. 11. RANDY STAPILUS, PARADOX POLITICS: PEOPLE AND POWER IN IDAHO, 254–55 (1st ed. 1988). 2022 IDAHO’S RAPID GROWTH BRINGS CHALLENGES AND OPPORTUNITIES 477  sale of liquor to cities and counties.12 These revenue streams help local government cover the cost of the services they provide, which help to reduce reliance on local property taxes. However, these funds often follow the ebbs and flows of the broader economy and their inconsistencies make them difficult to rely on for planning long-term financial obligations.  From the federal perspective, Idaho cities greatly benefited from the federal investments made during the mid-twentieth century. In the 1960s and 1970s, the federal government made significant investments in community infrastructure.13 For example, it provided funding to help many cities install or upgrade their water and sewer systems.14 These projects were and remain expensive and small communities with few utility ratepayers struggle mightily to finance these projects without federal assistance.15 Federal funding helped ensure that the cost burdens to communities were reduced and sustainable.16    Since then, following decades of limited federal investment in cities, aging municipal infrastructure now presents a major challenge. Recently, the federal government has stepped up to provide more resources to help cities fund road, water, sewer, and broadband projects.17 For example, without this federal  12. IDAHO CODE ANN. § 23-404 (2022). 13. CONGRESSIONAL BUDGET OFFICE, FEDERAL INVESTMENT, 1962 TO 2018 16 (2019), https://www.cbo.gov/system/files/2019-06/55375-Federal_Investment.pdf. 14. Five Cities Okay Sewer-Water Bond Issues, 83 THE GEM CITY NEWS 1, 4 (1971) (“Grangeville voters recently approved a $265,000.00 sewer and water bond proposal and to this figure will be added $397,000.00 from a federal grant.”) (on file with the author).  15. Frankie Barnhill, Watering Idaho: How Water Contamination in One Town Cost Residents $5 Million, BOISE STATE PUB. RADIO (Sept. 21, 2016, 6:15 AM), https://www.boisestatepublicradio.org/environment/2016-09-21/watering-idaho-how-water-contamination-in-one-town-cost-residents-5-million (“Ashton Mayor Teddy Stronks says building a $5 million water treatment plant in 2012 to manage the nitrate levels was a bitter pill to swallow. He says many Ashton residents are retired or on a fixed income. ‘It’s pretty hard for a little community this size to do these kind of things,’ says Stronks, ‘because every time we do, it raises our rates and we have to borrow money to pay for the project.’”). 16. David Sedlak, How Development of America’s Water Infrastructure Has Lurched Through History, PEW CHARITABLE TRUSTS (Mar. 3, 2019), https://www.pewtrusts.org/en/trend/archive/spring-2019/how-development-of-americas-water-infrastructure-has-lurched-through-history (“Water pollution was a nuisance, but city leaders lacked the will to tax their constituents to build sewage treatment infrastructure that might benefit downstream communities more than their own—and the state of the nation’s waterways further deteriorated until the early 1970s. It was only then that the nation, fed up with water pollution, came to support the Clean Water Act—a federal law that established requirements for sewage treatment. The federal government provided cities with grants and low-interest loans to upgrade their inadequate sewage infrastructure.”).  17.American Rescue Plan Act of 2021, Pub. L. No. 117-2 § 2912, 135 Stat. 4 (2021) (“This section provides funding for FY2021 to HHS to provide grants to states, Indian tribes, and other jurisdictions to assist low-income households that pay a high proportion of household income for drinking water and wastewater services by providing funds to owners or operators of public water systems or treatment works to reduce arrearages of and rates charged to such households for such services.”); Infrastructure  478 IDAHO LAW REVIEW VOL. 58  investment, some utility ratepayers would be looking at massive increases in their water and sewer bills every month.18 This injection of funds to address critical infrastructure, while viewed by some as a chance to make “a once in a generation investment,”19 was seen by others as an opportunity to rob Peter to pay Paul.20 As some state leaders debate the ideological merits of investment in local infrastructure, Idaho’s local leaders know investments made today are the best way to guarantee a better future.21 Mayors and city councilors across the state have a solid history of good stewardship of tax dollars used to carry out a city’s missions. While Idaho cities have common needs, they also have unique ones. Idaho’s city leaders evaluate the needs of their individual communities while listening to their constituents addressing how to best use limited funds. Local voters know very well what areas need attention—roads that need to be repaved, aging water and sewer lines that need to be replaced—not to mention ensuring our cities can hire police and firefighters to help residents in their time of need.   As cities and their local government counterparts have attempted to address the increased desire for services, the Idaho Legislature has weighed in on the topic, namely in narrowing how local governments may tax new growth in order to maintain and expand services and infrastructure. In 2021, the Legislature passed House Bill 389, which was ultimately a decision to no longer allow growth to pay for  Investment and Jobs Act, Pub. L. No. 117-58, 135 Stat. 429 (2021) (“Among other provisions, this bill provides new funding for infrastructure projects, including for roads, bridges, and major projects; passenger and freight rail; highway and pedestrian safety; public transit; broadband; ports and waterways; airports; water infrastructure; power and grid reliability and resiliency; resiliency, including funding for coastal resiliency, ecosystem restoration, and weatherization; clean school buses and ferries; electric vehicle charging; addressing legacy pollution by cleaning up Brownfield and Superfund sites and reclaiming abandoned mines; and Western Water Infrastructure.”).   18. Alex Brown, Lead Pipe Removal Speeds Up as Federal Stimulus Dollars Flow, PEW CHARITABLE TRUSTS (Sept. 29, 2021), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2021/09/29/lead-pipe-removal-speeds-up-as-federal-stimulus-dollars-flow (“Many municipalities and utilities are still trying to determine whether and where they have lead pipes, and local leaders say they lack the resources to quickly replace lead lines without steep increases in residents’ water bills.”). 19. USDOT Releases State by State Fact Sheets Highlighting Benefits of the Bipartisan Infrastructure Law, U.S. DEP’T OF TRANSP. (Nov. 18, 2021), https://www.transportation.gov/briefing-room/usdot-releases-state-state-fact-sheets-highlighting-benefits-bipartisan (“‘Americans rely on our transportation infrastructure every day – to get to work, school, loved ones, and to move goods across our economy,’ said Secretary Pete Buttigieg. ‘The once-in-a-generation investments in the Bipartisan Infrastructure Law will improve people’s lives in every state in the nation by increasing access to safe, clean, reliable transportation.’”). 20. Press Release, Sen. Mitch McConnell, Democrats’ Pandemic Plan: “A Tremendous Opportunity to Restructure Things to Fit Our Vision” (Mar. 5, 2021), https://www.mcconnell.senate.gov/public/index.cfm/pressreleases?ID=43679A8B-B52D-411A-9C96-06EE931FE8D0.  21. Scott Bedke, Megan Blanksma, Jason Monks & Mike Moyle, Right Now, Local Government Can Cut Your Property Taxes, IDAHO STATE J. (Aug. 27, 2021), https://www.idahostatejournal.com/opinion/columns/right-now-local-government-can-cut-your-property-taxes/article_b33bc6e7-cb4e-5d85-8743-b8ce5ba4dda9.html. 2022 IDAHO’S RAPID GROWTH BRINGS CHALLENGES AND OPPORTUNITIES 479  itself.22 This decision has forced Idaho’s current citizens and businesses to bear a greater burden in paying for demand based local services and infrastructure, such as roads, police, fire, and emergency medical services.  In order to continue to realize the return on the investment in local services and infrastructure made by generations of Idahoans throughout local communities, it is imperative that all stakeholders recognize the cost to develop and maintain them. Idaho’s city leaders do not have the luxury of avoiding today’s problems.  Solving contemporary funding issues is not easy; yet municipal leaders get it done.   Looking towards the horizon, to allow Idaho’s future mayors and city councilors to maintain affordable cities that are responsive to the needs and desire of residents, yet still meet regulatory and other demands, will require continued thought and evaluation of how local governments are funded. For example, cities rely on gas tax revenue to fund ongoing road maintenance and operation needs. As fuel efficiency standards continue to increase and hybrid and electric vehicles become more common, will the gas tax need to be raised? A new funding mechanism found? Or will the cost of maintaining roads continue to force some jurisdictions to turn paved roads into gravel?  As goods subject to sales tax have moved onto online sales platforms, the current state of another reliable funding source has been altered. Purchases made online from a retailer who does not have a physical presence in Idaho, such as eBay, are taxed at the same rate as goods purchased from a local hardware store.23 However, the sales tax from that online purchase does not ultimately get shared with Idaho’s communities, but rather it goes into a separate fund.24 If that money were to be distributed in the same manner as regular sales tax, it would not only provide property tax relief, but also allow cities to make necessary investments in services and infrastructure to the benefit of their citizens.   Idaho’s robust growth over the past several years has created new opportunities and posed new challenges the state has yet to contemplate. As the demands for city provided services and infrastructure continue to increase, it is important that the funding sources for the services and infrastructure remain up to date as well.         22. Geoffrey Wardle, HB 389: Poor Policy, Poorly Written, Bad for Rural Idaho, IDAHO BUS. REV. (May 11, 2021), https://idahobusinessreview.com/2021/05/11/hb-389-poor-policy-poorly-written-bad-for-rural-idaho/. 23. Logan Finney, What’s This “Wayfair Fund” I Keep Hearing About?, IDAHO REPORTS (Feb. 11, 2022), https://blog.idahoreports.idahoptv.org/2022/02/11/whats-this-wayfair-fund-i-keep-hearing-about/#:~:text=Idaho%20collects%20a%20six%2Dpercent,in%20the%20state's%20general%20fund. 24. Id.  

IDAHO’S RAPID GROWTH BRINGS CHALLENGES AND OPPORTUNITIES

Greene, Jillian

Idaho Department of Water Resources’ Amended Snake River Basin Moratorium Order: Survey of Potential Implications

Peterson, Ashley

Why Abolishing the Insanity Defense Is Unconstitutional in Death Penalty Cases

Wren, Gader

IDAHO LAW REVIEW – SPOTLIGHT Dobbs: A Powerful Opinion with Discrete Weaknesses                   Gader Wren*  “Facts are stubborn things; and whatever  may be our wishes, our inclinations, or the dictates of  our passions, they cannot alter the state of facts and evidence…” President John Adams1  I.  Introduction  In Roe v. Wade, the Supreme Court of the United States held that women have a constitutional right to an abortion.2 Over the following decades, Roe was reaffirmed by the Supreme Court in more than ten cases, including Planned Parenthood v. Casey.3 For years women have depended on Roe in making intimate medical decisions. However, this once constitutionally recognized right recently came to an end in Dobbs v. Jackson’s Women Health.4 On June 24, 2022, the Supreme Court of the United States corrected course and held that women do not have a right to an abortion under the Constitution.5 Although Dobbs was properly decided, proponents of the opinion must grapple with some of the Court’s less persuasive reasoning. This paper examines the weaker arguments in the Court’s Dobbs decision.  II.  Principles of Stare Decisis  Stare decisis, meaning “to stand by things decided,” has played a critical role since early American jurisprudence. Justice Story suggested that stare decisis was “in full view of the framers of the constitution” and “was required, and enforced in every state in the Union.”6 In more recent  *  Incoming law clerk to Justice Patricia Lee at the Nevada Supreme Court; former education advocate with the Thomas and Mack Legal Clinic in Las Vegas, Nevada. A thank you to Nazo Demirdjian, Michael Goutsaliouk, Andrew Gossage, John Ito, and Krystal Wren for their helpful suggestions. All views presented in this article are the sole views of the author and not of the aforementioned individuals or institutions.  1 Adams’ Argument for the Defense: 3–4 December 1770, NATIONAL ARCHIVES, https://founders.archives.gov/documents/Adams/05-03-02-0001-0004-0016 (last visited June 22, 2023). 2 See generally Roe v. Wade 410 U.S. 113 (1973). 3 See generally e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 (1992) (reaffirming the core holding of Roe.). 4 See generally Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022) (overruling Roe and its progeny). 5 Id. 6 JUSTICE STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, 378 (1833). 1Wren: Dobbs: A Powerful Opinion with Discrete WeaknessesPublished by Digital Commons @ UIdaho Law, 2023IDAHO LAW REVIEW – SPOTLIGHT times, stare decisis has been described as “promot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of the judicial process.”7 Nevertheless, stare decisis does not wholly bind the Court to earlier decisions.  In Dobbs, the Court stated that proper application of stare decisis requires an assessment of the “strength of the grounds on which [a case] was based.”8 Historically, the Court’s stare decisis analysis is not always the same. For example, in Brown v. Board of Education, the Court focused largely on the effect of separate but equal in “public education in the light of its full development and its… place in American life throughout the Nation.”9 After just six paragraphs of analysis the Court found that Plessy v. Ferguson’s policy of separate but equal was “inherently unequal.”10  In contrast, the Court, in Janus v. Am. Fed'n of State, Cnty., & Mun. Emps., Council, provides seven pages of analysis before overruling precedent.11 In those seven pages, the Court examined five factors: (1) “the quality of [the previous decision’s] reasoning”; (2) “the workability of the rule it established”; (3) “its consistency with other related decisions”; (4) “developments since the decision was handed down”; and (5) “reliance on the decision.”12  In Dobbs, the Court examined Roe under the same factors announced in Janus. While most of the Janus factors, ultimately favored overruling Roe, one factor did not: “developments since the decision was handed down.”13  III.  Social Development Since Roe  In discussing developments post-Roe, the Court specifically addressed social developments. Although some social developments post-Roe support its overruling, several mentioned by the Court do not. In fact, rather than endorsing these purported social developments affecting the strength of Roe, the Court prefaces these developments by stating, “Americans who believe that abortion should be restricted… note…”.14 The Court’s unwillingness to endorse these purported changes speaks to the  7 Payne v. Tennessee, 501 U.S. 808, 827 (1991). 8 Dobbs, 142 S. Ct. at 2244. 9 Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483, 492 (1954). 10 Id. at 495.  11 See generally Janus v. Am. Fed'n of State, Cnty., & Mun. Emps., Council 138 S. Ct. 2448 (2018). 12 See id. 13 Id. 14 Dobbs, 142 S. Ct. at 2258.  2Idaho Law Review Spotlight, Vol. 2 [2023], Iss. 1, Art. 2https://digitalcommons.law.uidaho.edu/ilrspotlight/vol2/iss1/2IDAHO LAW REVIEW – SPOTLIGHT weakness of these arguments. The Dobbs Court specifically addresses attitude changes toward unmarried pregnant women and fetal life, development of safe haven laws, and changes in adoption systems.15  A. Attitudes Toward Unmarried Pregnant Women The Court notes that attitudes toward unmarried women pregnant are less harsh today than in 1972.16 This may be true in California and other progressive states; however, this does not hold true in all states.17 Indeed a recent study indicates that social stigma against unmarried pregnant women continues throughout much of the United States and is especially strong in the South.18 One study participant shared that community members told her that her “bastard” son was raised in sin.19 Clearly, the stigma against unmarried pregnant women has not completely changed since 1972.  The stigma against unmarried pregnant women is strongest in states who will likely place strict bans on abortions.20 Why is this important? Because these are the women who, as some may argue, need access to abortion the most. Since Dobbs was handed down, the Guttmacher Institute has tracked state laws on abortion.21 States such as Alabama, Mississippi, Texas, Arkansas, and others have banned abortion in nearly every situation.22 Unsurprisingly, these are the states with the highest stigma against unmarried pregnant women.23 With Dobbs on the books, social stigma against unmarried pregnant women is likely to increase. In 2009, US News contributor Bonnie Erbe, stated, “[t]here's no stigma to unwed parenthood anymore, but there should  15 Dobbs, 142 S. Ct. at 2258-2259. 16 Id. at 2258. 17 Contra Marcia A. Ellison, Authoritative Knowledge and Single Women’s Unintentional Pregnancies, Abortions, Adoption, and Single Motherhood: Social Stigma and Structural Violence, 17(3) MED. ANTHROPOLOGY Q., 322, 322–347 (2003) (finding that middle-class white women in California who had had an unintended pregnancy, made substantial efforts to avoid related social stigmas). 18 Whitney Smith et al., Social Norms and Stigma Regarding Unintended Pregnancy and Pregnancy Decisions: A Qualitative Study of Young Women in Alabama, 48 PERSPECT. SEX REPROD. HEALTH 73, 73-81 (2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5022769/ (“Young mothers also face blame and judgment for having a child ‘too young,’ for lacking resources, for entrapping the man involved in the pregnancy, and for being unmarried.”). 19 Id. 20 Interactive Map: US Abortion Policies and Access After Roe, GUTTMACHER INSTITUTE (Sept 26, 2022), https://states.guttmacher.org/policies/?gclid=CjwKCAjwp9qZBhBkEiwAsYFsb4TcshxOAE5oAkaN6QJtwjkb0xhzqOK19SSXPgNCIHCQOpsGPPa2OxoChQQQAvD_BwE. 21 Id. 22 Id. 23 Supra note 18.  3Wren: Dobbs: A Powerful Opinion with Discrete WeaknessesPublished by Digital Commons @ UIdaho Law, 2023IDAHO LAW REVIEW – SPOTLIGHT be.”24 With abortion no longer available to millions of women, people like Erbe may attempt to increase social stigma against unmarried pregnant women.  B. Safe Haven Laws During oral arguments Associate Justice Amy Coney Barrett indicated that safe haven laws mitigate the need for nationwide access to abortions.25 More directly, Justice Barrett suggested that Roe and Casey strongly consider unwanted parenthood as an undue burden, but that safe haven laws removed that burden.26 This line of reasoning is dubious for two reasons, (1) adoption was available at the time of Roe; therefore, safe haven laws do not change the equation and (2) safe haven laws only address post-birth issues whereas abortion addresses both pre-birth and post-birth issues. The Dobbs opinion makes brief mention of safe haven laws, and the dissent takes due notice.27 The dissent states that safe haven laws are “irrelevant” and do not “reduce[] the health risks or financial costs of going through pregnancy and childbirth.”28 The dissent adds that just as in the days of Roe and Casey, the majority of mothers, in the absence of abortion access will “shoulder the costs of childrearing.”29 Here, the Dobbs Court’s unnecessary reliance on a weak claim only dilutes the strength of the opinion, in part by supplying the dissent with ammunition. Clearly, safe haven laws have had a minimal effect on the abortion landscape.  C. Adoption and Foster Systems The Court implies that women who put their “newborns up for adoption today ha[ve] little reason to fear that the baby will not find a suitable home.” This is dubious. At the end of 2020 there were approximately 407,000 children in foster care and additional 122,000 children eligible for adoption.30 Furthermore, on average children who are put up for adoption  24 Bonnie Erbe, Bring Back the Stigma Against Unwed Mothers, US NEWS (May 13, 2009), https://www.usnews.com/opinion/blogs/erbe/2009/05/13/bring-back-the-stigma-against-unwed-mothers. 25 Transcript of Oral Arguments at 56, Dobbs v. Jackson Women's Health Organization (19-1392), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/19-1392_4425.pdf. 26 Id. 27 Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228, 2259 (2022); Dobbs, 142 S. Ct. at 2339 (Breyer J., Sotomayor J., and Kagan J., dissenting).  28 Id. at 2339 (Breyer J., Sotomayor J., and Kagan J., dissenting).  29 Id. 30 Fact Sheet, CCAI INSTITUTE, https://www.ccainstitute.org/resources/fact-sheets#:~:text=According%20the%20U.S.%20Department%20of,years%20for%20an%20adoptive%20family (last visited June 22, 2023). 4Idaho Law Review Spotlight, Vol. 2 [2023], Iss. 1, Art. 2https://digitalcommons.law.uidaho.edu/ilrspotlight/vol2/iss1/2IDAHO LAW REVIEW – SPOTLIGHT wait four years before a family finds them.31 For example, in 2021 Eastern Idaho reached a “crisis” point due to a lack of foster homes.32 Relatedly, child abuse-related calls and deaths surged in Idaho over from 2019-2021.33 Further undercutting this argument is that adoption systems are not a new development. State governments and private agencies have operated adoption operations long before the days of Roe. For example, the Massachusetts Adoption Resource Exchange was founded in 1957, almost twenty years before Roe.34 The majority simply cannot say in good faith that adoption services are a recent development. To some extent, adoption agencies have become more crowded than ever before.35  D. Changed Views on Fetal Life Of all the assertions made by the majority, the assertion that Americans have changed their views on fetal life is the most mindboggling.36 Before Dobbs, Gallup reported that 47% of Americans believed that abortion is morally acceptable.37 By comparison, in 1973, 46% of Americans favored the legalization of abortion – a 1% change hardly demonstrates an altered view on fetal life.38 Even without statistics, members of the Supreme Court certainly knew that America was divided in 1973 and remained sharply divided in 2022. Nearly every year, Americans march to the Supreme Court and their State Capitols with signs in hand reading, “my body, my choice,” “right to life,” and “protect Roe.”39 It is simply misleading to suggest that Americans have changed their views on the value of fetal life.  31 Id.  32 Kelcie Moseley-Morris, ‘I Have Not Seen It Like This’: Shortage of Foster Homes in Idaho Reaches Crisis Point, EAST IDAHO NEWS (Nov. 29, 2021), eastidahonews.com/2021/11/i-have-not-seen-it-like-this-shortage-of-foster-homes-in-idaho-reaches-crisis-point/. 33 Id. 34 History, MARE, https://www.mareinc.org/annual-report-fy22 (last visited Apr. 5, 2023). 35 Wm. Robert Johnson, Historical Statistics on Adoption in the United States, Plus Statistics on Child Population and Welfare, JOHNSTON ARCHIVE (Nov. 12, 2022), johnstonsarchive.net/policy/adoptionstats.html. 36 Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228, 2259 (2022). 37 Megan Brenan, Record-High 47% in U.S. Think Abortion Is Morally Acceptable, GALLUP (June 9, 2021), https://news.gallup.com/poll/350756/record-high-think-abortion-morally-acceptable.aspx; But see, Lydia Saad, 'Pro-Choice' Identification Rises to Near Record High in U.S., GALLUP (June 2, 2022), https://news.gallup.com/poll/393104/pro-choice-identification-rises-near-record-high.aspx. 38 Gallup Poll Finds Public Divided on Abortion in First 3 Months, NY TIMES (Jan 28, 1973), https://www.nytimes.com/1973/01/28/archives/gallup-poll-finds-public-divided-on-abortions-in-first-3-months.html 39 Why Will We Continue to March, MARCH FOR LIFE, https://marchforlife.org/national-march-for-life/ (last visited March 23, 2023). 5Wren: Dobbs: A Powerful Opinion with Discrete WeaknessesPublished by Digital Commons @ UIdaho Law, 2023IDAHO LAW REVIEW – SPOTLIGHT IV.  Conclusion  Though correctly decided, Dobbs, unfortunately, contains several weak assertions. Defenders of Dobbs must grapple with some of the Court’s weak reasoning. Though no judicial opinion is perfect, the Court would be wise to avoid weak assertions in future opinions. 6Idaho Law Review Spotlight, Vol. 2 [2023], Iss. 1, Art. 2https://digitalcommons.law.uidaho.edu/ilrspotlight/vol2/iss1/2

Dobbs: A Powerful Opinion with Discrete Weaknesses

Brockmann, Alexandra

HOMELESS IN A MOUNTAIN TOWN: HOW IDAHO RESORT COMMUNITIES ARE COMBATTING THE AFFORDABLE HOUSING CRISIS

University of Idaho

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