Gov. Brad Little on Wednesday signed the Idaho Legislature’s Texas-style abortion bill into law, making the Western state the first state to follow in Texas’ footsteps to ban abortions after about six weeks of pregnancy.
The law, which is scheduled to take effect in 30 days after the signing, allows the ban to be enforced through lawsuits to avoid constitutional court challenges. It allows potential family members of the “preborn child” to sue a doctor who performs an abortion after a cardiac activity is detected in an embryo for a minimum of $20,000.
Why Idaho governor signed the bill
Little, a Republican, signed the bill even though he called it “unwise.”
- “I stand in solidarity with all Idahoans who seek to protect the lives of preborn babies,” Little wrote in a letter to Lt. Gov. Janice McGeachin, who is also president of the state Senate.
Though Little said he stands in favor of anti-abortion policies, he said he also had concerns about whether the law was constitutional.
- “While I support the pro-life policy in this legislation, I fear the novel civil enforcement mechanism will in short order be proven both unconstitutional and unwise,” Little said.
The governor said he’s worried it “undermines” the constitutional form of government.
- “Deputizing private citizens to levy hefty monetary fines on the exercise of a disfavored but judicially recognized constitutional right for the purpose of evading court review undermines our constitutional form of government and weakens our collective liberties,” Little wrote.
Little also stated concerns about the law allowing a rapist’s relatives to sue.
- “Ultimately, this legislation risks retraumatizing victims by affording monetary incentives to wrongdoers and family members of rapists,” he wrote.
The governor concluded his letter by encouraging lawmakers to fix those problems and unintended consequences to “ensure the state sufficiently protects the interests of victims of sexual assault.”
The Idaho Legislature is controlled by a Republican supermajority in both the House and Senate. The law passed the Senate on a 28-6 vote and the House with a 51-14 vote. Three House Republicans voted against the bill.
Megan Rockefeller holds a sign reading “My body my choice” as she mails a letter to Idaho Governor Brad Little at the downtown post office as part of a protest over SB1309 on Saturday, March, 19, 2022 in Boise, Idaho.
Sarah A. Miller, Associated Press
The case against Idaho’s abortion bill
Opponents have called the bill unconstitutional and note that six weeks is before many women even know they’re pregnant.
They also note problems with associating cardiac activity with what’s known as a heartbeat.
- Modern technology can detect a first flutter of electric activity within an embryo’s cells as early as six weeks. The flutter isn’t a beating heart; it’s cardiac activity that will eventually become a heart. An embryo is termed a fetus after the eighth week of pregnancy, and the actual heart begins to form between nine and 12 weeks of pregnancy.
Opponents also take issue with allowing potential family members to sue.
- Under the law, the father, grandparents, siblings, aunts and uncles of the “preborn child” may sue an abortion provider for a minimum of $20,000 in damages within four years after the abortion. Rapists can’t file a lawsuit under the law, but a rapist’s family members could.
- “The vigilante aspect of this bill is absurd,” said Idaho House Assistant Minority Leader Lauren Necochea, D-Boise. “Its impacts are cruel, and it is blatantly unconstitutional.”
Rebecca Gibron, interim CEO of Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana and Kentucky, which operates Idaho’s three abortion clinics, called the law unconstitutional. She said Planned Parenthood was “committed to going to every length and exploring all our options to restore Idahoans’ right to abortion.”
- “I want to emphasize to everyone in Idaho that our doors remain open. We remain committed to helping our patients access the health care they need, including abortion,” Gibron said.
Officials in the White House also had strong words against Idaho’s new law. White House press secretary Jen Psaki said the Biden administration knew Texas’ law would lead to other states passing similar legislation. She called on Congress to send President Joe Biden a bill to “shut down these radical steps.”
- “This development is devastating for women in Idaho, as it will further impede women’s access to health care, especially those on low incomes and living in rural communities,” Psaki said in a statement issued Wednesday.
The argument for Idaho’s abortion law and its national scope
Supporters of the law say it’s Idaho’s best chance to actually restrict abortions in the state after years of trying. Recently, Idaho passed a six-week abortion ban law, but it required a favorable federal ruling court to take effect, and that hasn’t happened.
- “This bill makes sure that the people of Idaho can stand up for our values and do everything in our power to prevent the wanton destruction of innocent human life,” the bill’s sponsor, Rep. Steven Harris, R-Meridian, said in a statement after the Idaho Legislature voted to pass the bill earlier this month.
Idaho’s move is the latest to embody the conservative battle over abortion playing out across the U.S., months before the U.S. Supreme Court is slated to issue a ruling that could unravel or overturn Roe v. Wade, the landmark 1973 decision that established the constitutional right to abortion.
Idaho’s law is modeled after Texas’ law, which the U.S. Supreme Court has allowed to stay in place until a court challenge is decided on its merits. Several other states are following in Texas’ and Idaho’s lead, including Tennessee, which introduced a Texas-style abortion bill last week.
In December, the Supreme Court heard oral arguments in what is the most direct challenge to Roe v. Wade in decades: Dobbs v. Jackson Women’s Health Organization. The case disputes a 2018 Mississippi law that would ban abortions 15 weeks after a woman becomes pregnant.
Under the precedent set by Roe v. Wade in 1973, then upheld by Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, the Mississippi law is illegal. If the court rules in favor of the Mississippi law, it would effectively overturn Roe v. Wade, deferring abortion rights to state legislatures.
What’s happening in Utah?
Utah is one of 21 states with a so-called trigger law that would impose tight, currently illegal, restrictions on abortion should Roe v. Wade be overturned.
Approved by the full Utah Legislature and signed into law by Utah. Gov. Gary Herbert in 2020, SB174 would prohibit a person from receiving an abortion with certain exceptions. Here’s what’s in the bill:
- A woman can still receive an abortion if the pregnancy poses a life-threatening risk to the woman or “a serious risk of substantial and irreversible impairment of a major bodily function.”
- An exemption is also granted if two physicians who practice “maternal fetal medicine” concur that the fetus “has a defect that is uniformly diagnosable and uniformly lethal or ... has a severe brain abnormality that is uniformly diagnosable.”
- Those pregnant as a result of rape or incest are also eligible for an exemption. The physician must verify with law enforcement that the incident was reported.
- Anyone found guilty of performing an abortion outside the scope of the bill will be charged with a second-degree felony.
- If a clinic performs an abortion outside the scope of the bill, it could have its license revoked.
Contributing: Associated Press