BOISE, Idaho (CN) — Idaho has become the first state to enact an abortion ban modeled after the hotly contested Texas legislation, with Republican Governor Brad Little signing a bill into law that bans abortions in the state after six weeks.
The controversial measure, often referred to as the “fetal heartbeat” bill, blocks abortions in Idaho once embryonic or fetal cardiac activity has been detected. Not unlike the Texas bill it is molded after, the Idaho bill relies on civil enforcement through lawsuits to uphold the ban, with the father, grandparents, siblings and even uncles or aunts of the fetus allowed to sue the medical provider who carried out the procedure.
Though largely based on the Texas bill, a few points separate Idaho's version.
For one, the Idaho bill allows for exceptions in the event of rape or incest, though to qualify a woman must file a police report and show it to the medical provider.
Idaho also more narrowly tailored who is allowed to sue medical providers. Its bill lays out which family members are allowed to levy a lawsuit against the providers as part of the law’s enforcement structure, while Texas allows virtually any private citizen to sue any Texas doctor who performed an abortion, plans to perform an abortion or helped a woman receive one.
Little said he stands behind the general policy and aim of the bill, but at Wednesday's signing he expressed some misgivings on how the bill is designed.
"I stand in solidarity with all Idahoans who seek to protect the lives of preborn babies," Little wrote in a letter to Lieutenant Governor Janice McGeachin, president of the state Senate, which passed the bill this past week.
But the governor added he has serious doubts over the bill’s reliance on civil enforcement, which will likely face a steep uphill legal battle and could prove ill-conceived.
"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.
Ross Burkhart, professor of political science at Boise State University, says part of Little’s issue with the bill could stem from the fact that Idaho has a long history of defending controversial laws from legal challenges — and has often been on the losing side.
“The 'civil enforcement mechanisms' in the legislation are likely to bring about court challenges as to the law's constitutionality,” Burkhart said. “Idaho has a history of its laws being declared unconstitutional. The state has had to spend around $3 million from Idaho taxpayers in legal fees unsuccessfully defending the constitutionality of several of its laws over the past two decades.”
But Burkart noted the Idaho governor also has a history of supporting anti-abortion legislation. Little was one of the governors who signed a brief to the Supreme Court asking the high court to overturn Roe v. Wade and has signed other anti-abortion measures during his first term.
This has likely put Little into a conflicted situation, Burkart said, one where he both supports the underlying policy of the abortion ban but also fears for its future.
“Thus, Governor Little is of two minds about this legislation, in my view: he approves of the intent to severely limit abortions in Idaho, yet is concerned about the precedent of civil enforcement mechanisms, the legal fight ahead on the bill's constitutionality that could well lead to Idaho being on the losing side yet again, and the impact on vulnerable Idaho residents.”
There has also been some speculation that the governor signed the bill in part due to pressure from the far-right players in Idaho’s Republican-dominated political landscape. The bill passed with strong GOP support in both the Idaho House and Senate, and Little said his office received feedback from the public that was reportedly 2-to-1 in favor of the bill.
Little also has announced his plans to seek a second term as Idaho’s governor.
Burkart notes with all of this at his back, it would have been challenging for Little to fight against the bill.
“It would have been politically difficult for the governor to oppose the legislation, given this support,” Burkart said. “However, the governor would likely push back on claims that this is just election-year politics by stating his long-standing support for pro-life policies, and that his signing on to the amicus brief took place last year, not an election year.”
Regardless of the reasoning behind Little’s decision to sign the bill, a bitter fight over its legality is almost certain.
Alexis McGill Johnson, president of Planned Parenthood Action Fund, quickly condemned the bill Wednesday evening and reaffirmed that Planned Parenthood doors would remain open in the Gem State.
The White House has also pushed back against the abortion ban, with White House Press Secretary Jen Psaki calling it “devastating for women in Idaho” and saying the Biden administration remains staunchly opposes to these Texas-modeled pieces of legislation.
"The Biden-Harris administration will continue to stand with women and support their right to make their own health care decisions, a constitutional right that Roe v. Wade reaffirmed nearly five decades ago," Psaki said. "And the president again calls on Congress to act and send a bill to his desk to shut down these radical steps."
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