Idaho became the first state on Monday to pass a bill modeled after Texas’ strict law that uses private citizens to enforce a ban on abortions after about six weeks of pregnancy and to avoid court challenges to the ban’s constitutionality.
It was approved by the Idaho House with a Republican majority. The bill now goes to Governor. Brad Little is a Republican. Little, who is a Republican, hasn’t commented on the bill in detail but he did sign a similar restriction last year.
Idaho’s move exemplifies the battle over abortion access that’s playing out in states across the country, just months before the Supreme Court is expected to issue a ruling that could unwind or overturn Roe v. WadeThe 1973 Supreme Court decision which established the Constitution’s right to abort. The current law says that states can not ban abortions before the fetus becomes viable. This typically happens between 23-24 weeks. But the Supreme Court’s conservative majority signaled last spring that it may be willing to change that standard when it agreed to hear arguments over a Mississippi law banning abortion after 15 weeks.
As anti-abortion state lawmakers await the Court’s decision, they are rushing to pass new legislation that would restrict abortion. Even as RoeAlthough technically, abortion is still the law of this land. However, it’s becoming more challenging for advocates of reproductive rights to end them due to shifting political and legal landscapes..
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If Idaho’s governor signs the new bill, it will take effect 30 days after that signing—changing the state’s law just months before the Supreme Court is expected to rule. At least 10 states have introduced bans copying parts of Texas’ private enforcement mechanism, which was explicitly designed to avoid judicial review.
The anti-abortion state lawmakers’ strategy has worked so far, as the Supreme Court has declined to block the Texas law since it took effect in September. Recently, the Texas Supreme Court stated that it couldn’t stop the ban due to the fact that the law forbids state officials from applying it. Idaho’s lawmakers on Monday said this was a positive sign for their bill.
“Texas’ clever, private course of action did good,” Republican State Rep. Steven Harris, the bill’s co-sponsor, said on the House floor ahead of the vote on Monday. “It stopped physical abortions, chemical abortions in their tracks.” He added that despite legal challenges in front of the Supreme Court, “abortions are still being stopped in Texas.”
Democratic legislators pushed back before the vote. “This bill is not clever, it’s absurd,” state Rep. Lauren Necochea said during debate. “Its impacts are cruel and it is blatantly unconstitutional.”
How would the Idaho ban impact your life?
While Idaho’s bill was modeled after the Texas bill’s enforcement mechanism, there are some key differences. The Texas law allows any private citizen to sue anyone who “aids or abets” someone in getting an abortion after fetal cardiac activity is detected, which happens around six weeks, before many people know they are pregnant. Texas law offers a $10,000 legal fee and a reward for any successful plaintiffs. The Idaho bill, in contrast, narrows the potential litigants, allowing only family members of the fetus, including the mother and father, the fetus’ siblings, grandparents, aunts and uncles, to sue. These family members cannot sue abortion providers, according to the bill. This bill establishes a minimum award of $20,000, plus legal costs. It also allows for lawsuits that last up to four years.
Texas’s laws do not provide any exceptions regarding pregnancies that are the result of rape, incest, or other forms. Certain, but limited exceptions are allowed by the Idaho bill. A pregnant person must have filed a police report claiming the rape or incest—a process that is likely to deter many from using the exception. Although the bill says that an abortionist cannot sue an abortion provider for a victim seeking an abortion, it leaves out key details. It does not state, however, whether an abortion provider can be sued by a rapist. IndictedA rapist may sue an abortion provider for causing the victim to have an abortion. Rape trials can take many months and years. The bill does allow a rapist’s family members to sue.
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Planned Parenthood is the sole provider of abortion services in Idaho and says that all three clinics will be compliant with the law if it becomes law. Texas data shows that abortion rates dropped 60% following the implementation of its ban. Advocates for abortion rights believe that the decline in Idaho may have been greater due to existing obstacles and its rural location. Accessing abortion requires that a person raise the necessary funds, arrange travel arrangements and take time off from their job to make it possible. Advocates note that this is more challenging for those with lower incomes and people of color, as well as people living in rural areas. All of these steps will be more challenging if patients need to travel outside of the state.
“This bill would have a devastating impact on the people of Idaho,” says Dr. Erin Berry, Washington state medical director of Planned Parenthood Great Northwest, Hawaíʻi, Alaska, Indiana, and Kentucky, who also provides abortions in Idaho.
Berry is currently working in coordination with Planned Parenthood and other independent abortion clinics around the region on ways to help patients locate appointments. But Berry says that the COVID-19 epidemic has only exacerbated matters. “Every clinic that I’ve talked to in the region is understaffed,” she says. “We already struggle with the patients that we have because of staffing and so we are doing the best that we can to prepare, to increase appointment times, to increase staffing—but we have our limits.”
Planned Parenthood is looking at how to challenge the law in court, says Lisa Humes-Schulz, vice president of policy and regulatory affairs for Planned Parenthood Alliance Advocates Northwest, the organization’s advocacy arm in the region.
Idaho’s last year law prohibited abortion after detection of fetal cardiac activity. But, because it was unconstitutional, the trigger meant that it could only be in effect if another similar state law is upheld by an U.S. appels court. Some legislators raised this concern as well. The state’s deputy attorney general Issued an opinion saying the new bill would also “likely be found unconstitutional under the Court’s current jurisprudence.”
The Ninth Circuit Court of Appeals would hear the Idaho ban if it was challenged. This court has historically been more supportive of abortion rights than the Fifth Circuit which, according to Humes-Schulz, heard the Texas case. However, she says that the Ninth Circuit was changed by former President Donald Trump, who appointed more conservative judges.
“We also know that coming down the pike is that challenge to Roe vs. Wade at the Supreme Court, so we do fear that even if we do secure a victory that could be short lived,” Humes-Schulz says. “What this bill is really doing is expediting what could already happen if the Supreme Court does open the door in June.”
‘A transition moment’ for abortion
Advocates weigh similar factors in other states.
Oklahoma, which has seen a colossal increase in demand for abortions from patients fleeing Texas over the past six months, has introduced several aggressive abortion restrictions, including its own Texas-style six-week ban and a bill that would ban abortions 30 days after a person’s last menstrual period, effectively outlawing all abortions.
Florida passed recently a ban of 15 weeks based on the Mississippi law before the Supreme Court. Arizona is also considering such a bill.
West Virginia lawmakers attempted to pass a ban of 15 weeks but, in the closing minutes of the legislative session, decided instead to ban abortions for anyone who is pregnant. Kentucky has meanwhile introduced a set of abortion restrictions. Advocates claim that this would ban abortion access across the state and introduce new, medically unneeded requirements that cannot be met by providers.
Many of these bills might not have advanced in legislative sessions before. Like Idaho, many of these bills’ sponsors claim that they were inspired by the Texas Supreme Court case. “We are absolutely in what is likely to be a transition moment for the abortion rights and abortion access movement,” says Elisabeth Smith, director for state policy and advocacy at the Center for Reproductive Rights. “Roe v. WadeGood law. It is protected by the federal constitution. And yet, we have seen states enact more and more blatantly unconstitutional abortion bans and abortion restrictions.”
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You can even use it with RoeAlthough technically still in effect, the Supreme Court’s decision will have an impact on how activists and providers of abortion advocate for restrictions to be removed and challenged in court.
One change is that the bills this year seem to have been written more quickly than in the past, according to Smith, and are “poorly drafted.” That means they are sometimes written in confusing ways, or fail to convey the lawmakers intensions, leaving advocates to interpret the scope of the legislation impact.
Smith, Smith, and other advocates for reproductive rights say that fewer lawmakers are concerned about having their laws challenged in court. In the past abortion rights groups used to promise that they would sue states for unconstitutional restrictions on abortion and then announce legal challenges as soon as governors had signed laws into effect. This year, groups have often been more cautious in public statements—promising to “explore all legal options” or “continue fighting” rather than committing to one course of action.
“This argument was made in the past. I said in several contexts that we would sue if the law was passed. Even that threat was ignored because the hostile legislators truly believe that this law will end all of Roe is here,” Smith says.
‘Stuck in Limbo’
The new legal landscape could be complicated when abortion rights organizations sue. Some bills, like Idaho’s, include emergency clauses that allow them go into effect much more quickly than other legislation. Hume-Schulz says this can make it more difficult to file a lawsuit or block a law before it goes into effect.
A different standard may apply to laws which take effect following the end of June’s term on the Supreme Court. Center for Reproductive Rights represents Mississippi’s abortion clinic in this challenge. Roe Before the Supreme Court. “Until we know, we will be in a place of having arguments about current law that are strong and have been upheld for decades, but we don’t know what our next arguments will be,” Smith says.
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Some cases have been put on hold by lower court judges because they fear legal insecurity. The Eighth Circuit was asked by Arkansas last summer to postpone its decision on a state-enforced abortion ban in Arkansas until the Supreme Court makes its ruling. The Eleventh Circuit Court of Appeals later made a similar move in case about Georgia’s six-week abortion ban.
Amiri says that the Sixth Circuit Court judges’ decision is, so far, an outlier. But as more abortion restrictions are passed and potentially challenged this year, Moore’s dissent signals that other courts may act similarly.
While all eyes are on the Supreme Court’s pending decision, activists on both sides of the debate are trying to shape abortion access more immediately. Many of the changes that happen in the next few months will define the battlefield for what’s to come.