By Mimi Nguyen Ly
A bill in Idaho banning abortion after about six weeks with a unique enforcement mechanism modeled off of a Texas abortion-ban law is headed to the governor’s desk after passing the state’s House of Representatives.
The Idaho House on Monday voted 51–14 to pass S.B. 1309, with all 12 state House Democrats voting against the measure.
The bill updates Idaho’s current abortion ban, signed into law in 2021; it bans abortion after a fetal heartbeat is detected, around six weeks of pregnancy. However, the bill is not in effect due to a trigger provision that means the measure would only be enacted if a federal appeals court upholds another heartbeat law. Several states that have passed heartbeat laws in recent years had them blocked from being enforced because of legal challenges.
S.B. 1309 would add to the 2021 law by adding a private enforcement mechanism modeled after the Texas Heartbeat Act, also known as S.B. 8.
In particular, the Idaho measure would allow certain family members to bring a civil lawsuit against the abortion provider for a minimum of $20,000 in damages, within four years after the alleged abortion.
Family members who can sue include the father, the grandparent, a sibling, or an aunt or uncle of the unborn child. The exception is for the individuals who caused the pregnancy through incest or rape; they cannot sue the abortion provider for damages.
S.B. 1309 passed the state Senate 28–6 on March 3. It now heads to Gov. Brad Little’s desk. He has 10 days to sign the bill to become law or veto it. Little has not publicly commented on whether he would sign the measure but has generally expressed opposition to abortion in the past.
Idaho has a Republican trifecta, which means both chambers of the state’s legislature are controlled by Republicans, and the governor is a Republican.
“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,” state Rep. Steven Harris (R-Meridian), a sponsor of the bill, said in a statement after the vote.
Alexis McGill Johnson, president and CEO of the Planned Parenthood Action Fund, said in a statement in response to the bill’s passing: “If this ban goes into effect, it will harm pregnant people & disproportionately impact already marginalized communities.
“Make no mistake: Planned Parenthood will continue to provide care in Idaho & will continue fighting for patients. We’re not done.”
Planned Parenthood Alliance Advocates commented on the Idaho bill, saying in a statement, “This bill is modeled directly after Texas’s latest abortion ban, which was designed explicitly to avoid legal challenges and which the Supreme Court ultimately allowed to go into effect.
“Since its implementation in September, 60 percent of the state’s abortion care has been eliminated,” the group said, referring to Texas.Read MoreTexas Supreme Court Rules Against Abortion Providers, Effectively Ends Challenge to State’s Abortion Ban
Idaho’s bill differs from Texas’s abortion ban in several instances. While the Idaho proposal permits only the person who receives the abortion or certain family members to sue, Texas’s law lets private citizens bring lawsuits.
The Idaho ban provides exceptions for rape and incest in some cases, but Texas’s S.B. 8 does not provide any such exceptions. Under the Idaho ban, the pregnant woman must have reported her rape or incest to the police and given the police report to the abortion provider. The exception for rape and incest would likely be impossible for many women to meet, opponents say, because Idaho law prevents the release of police reports in active investigations.
Texas’s law furthermore allows the lawsuits to be filed against anyone suspected of having helped the woman have an abortion, for up to $10,000 and legal fees for each successful suit. The Idaho proposal only allows for the person who carried out the abortion to be sued, and orders the abortion provider to pay a minimum of $20,000 as well as legal fees.
Idaho also has another law in place that would ban abortions after Roe v. Wade is overturned. The U.S. Supreme Court is due to rule by the end of June on the constitutionality of a law in Mississippi that bans abortion after 15 weeks of gestation. Mississippi Attorney General Lynn Fitch asked the court in a filing to overturn Roe v. Wade so the state can uphold its law. The case is Dobbs v. Jackson Women’s Health.
The 1973 Roe v. Wade ruling prohibited states from banning abortions prior to when the fetus is deemed “viable”—that is, potentially able to live outside its mother’s womb—deemed at the time usually around the second trimester of pregnancy at 24 weeks.