Idaho Lawmakers Send 'Texas Copycat' Anti-Abortion Bill to Governor’s Desk

The Idaho House voted on Monday to pass a bill that would ban abortions after six weeks of pregnancy and uses an enforcement mechanism similar to the law Texas passed last year.

Lawmakers in the Gem State voted 51-14 to pass Senate Bill 1309, sending it to Governor Brad Little’s desk. A Republican, Little has supported similar abortion bans in the past, but has not commented on the present bill.

This bill is like another Little signed last year, both of which ban termination of a pregnancy after a so-called “fetal heartbeat” can be detected. That time, which can occur as early as five weeks after conception - before many would know they were even pregnant - was chosen because anti-abortion activists believe it is the time the embryo becomes a separate entity from its mother, but in reality what is termed a “heartbeat” is nothing more than electrical impulses where the embryo’s heart would form much later in gestation. In fact, it’s not until week 8 of pregnancy that medicine begins to refer to it as a fetus.

However, that bill, HB 366, requires a favorable court ruling on a similar law elsewhere in the country before it can take effect.

The Texas bill, SB 8, was also passed last year and similarly bans abortions at roughly the fifth week of pregnancy. It wasn’t the first bill to ban abortion so early, but it was the first to introduce a new enforcement method designed to evade being struck down by the US Supreme Court, and Idaho’s SB 1309 effectively copies that method.

Under Idaho SB 1309, the father and the people who would have become the grandparents, siblings, aunts and uncles of the fetus if it had been born, can sue an abortion provider for a minimum of $20,000 in damages up to four years after performing an abortion.

A rapist who caused a pregnancy could not sue under the law, but the rapist’s relatives could.

“This will absolutely lead to an almost complete elimination of abortion access in Idaho,” said Lisa Humes-Schulz, vice president of policy and regulatory affairs for Planned Parenthood Alliance Advocates Northwest. The organization operates the only three abortion clinics in Idaho and said it will stop offering abortion services after six weeks if the bill becomes law, according to The 19th.

Still it is not quite as broad as the Texas law, which allows any third party to sue anyone who “aids and abets” an abortion, ostensibly including a taxi driver who takes a patient to a clinic where an abortion is performed. The law has had a chilling effect on abortions, which fell by 60% in the first month after the restriction took effect.

Texas SB 8 has stood up to several court challenges since it was passed in April 2021, including a request at the US Supreme Court level to block it from taking effect on September 1. In December 2021, the high court punted on the question of SB 8’s constitutionality, but said abortion providers could continue to bring challenges in lower courts, and in January rejected an appeal to revive the litigation.

The Supreme Court legalized abortion in the US in 1973 in Roe v. Wade, but the right has never been codified in US law, and a desperate 11th-hour attempt by Democrats to do so has been stalled by Republicans in the Senate. Roe created a regulation structure for abortion that banned any kind of restriction on access before the 13th week of pregnancy and only allowed certain forms of restrictions until the 24th week.

On its face, both the Texas law and the Idaho bill appear to violate the court’s 1973 ruling. However, with a powerful 6-3 conservative majority, many fear its unwillingness to strike down SB 8 signals a willingness to overturn Roe completely - something the state of Mississippi directly asked the high court to do in the December 2021 case Dobbs vs. Jackson Women's Health Organization. A decision is expected by the summer of 2022.

Abortion Rights, Trans Rights Dovetail

Like Texas and Mississippi, Idaho’s crackdown on abortion rights has been paralleled by a crackdown on LGBTQ rights, both of which are championed by many of the same advocacy groups and legislators. Last week, the Idaho House passed a felony ban on providing health care for transgender youth, including hormone therapy, puberty blockers, and trans-related surgeries. Republican Rep. Bruce Skaug, who sponsored the bill, was also sponsor of HB 366, the abortion bill Little signed last year.

Idaho is also the first state to pass a ban on trans girls competing on girls’ sports teams in 2020, although a federal judge struck that law down.

Texas similarly has banned trans girls from girls’ sports and most recently, Texas Attorney General Ken Paxton issued a legal opinion that affirmative health care for trans youth was a form a child abuse. GOP Governor Greg Abott then ordered the state’s Child Protective Services to investigate parents of trans children for signs that they affirm their child’s gender identity, which could lead to the child being taken by the state and placed in a home or institution that would force them to adhere to the gender they were assigned at birth. On Friday, a Texas judge ordered a halt to the practice.

Likewise in Mississippi, bans on trans youth health care and trans athletes have become law in recent years, and most recently, a ban on allowing trans people to change their names on legal documents has advanced in the state legislature.

The issues have also dovetailed in Poland, where nearly all abortions are banned and large parts of the country have declared themselves "zones free of LGBT ideology," and in Guatemala, where a bill passed last week both increases penalties for abortion and bans same-gender marriages.

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