Idaho Gov. Brad Little, a Republican, signed a ban on abortion into law that has an enforcement mechanism similar to that of the high-profile Texas ban, allowing relatives of the unborn child to sue anyone found to be aiding and abetting the procedure.
The new law bans the procedure once a fetal heartbeat is detected, usually around six weeks into gestation, and establishes a reward of at least $20,000 plus legal fees. Providers who perform an abortion after that six-week mark are vulnerable to legal trouble from members of the patient’s family. Any relative of “a preborn child” — such as the father, grandparents, aunt, uncle, or sibling — is entitled to sue the doctor who performs the procedure.
“I stand in solidarity with all Idahoans who seek to protect the lives of preborn babies,” said Little, who has urged the Supreme Court to overturn prior decisions legalizing abortion. “I firmly believe those decisions were incorrectly decided and that federalism mandates the regulation of abortion be returned to the states.”
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The law has been compared to Texas’s S.B. 8, a fetal heartbeat ban implemented last September. The Idaho law differs from the Texas law in some significant ways, though. While abortion providers in Idaho are subject to legal action from the unborn child’s relatives only, the Texas law allows any civilian to sue anyone believed to aid or abet an abortion. Successful suits in Texas can win up to $10,000 plus legal fees.
The Texas law has withstood legal challenges to its civil enforcement mechanism, which the Supreme Court has so far declined to block. A recent ruling from the Texas Supreme Court effectively ended existing legal challenges to the law after judges ruled state medical licensing officials are not responsible for enforcing the law and therefore cannot be sued.
Little, who has seen the legal debacle in which the Texas law was tangled, said he expects challenges to the enforcement mechanism in Idaho’s law.
“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. 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. None of the rights we treasure are off limits,” Little said.
The Idaho law makes exceptions in cases of rape or incest, unlike the Texas law. But it requires women to file a police report and show it to the healthcare provider before they can undergo the procedure.
“I appreciate the exception provided for victims of rape and incest, but the challenges and delays inherent in obtaining the requisite police report render the exception meaningless for many,” he said. “I am particularly concerned for those vulnerable women and children who lack the capacity or familial support to report incest and sexual assault.”
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Idaho’s heartbeat bill moved quickly through the state Legislature. The Senate voted overwhelmingly in early March to advance the bill, which was then passed out of the House last week by a vote of 51-14. Little signed a similar heartbeat bill last year, though it will only go into effect if the majority-conservative Supreme Court chooses to overturn the 1973 Roe v. Wade decision. The court will consider the future of Roe in June when it will rule on the case Dobbs v. Jackson Women’s Health Organization, which poses whether states can ban abortion before the point at which the infant can live outside the womb, usually at 22 to 24 weeks.
