On Wednesday afternoon, a bill banning abortions performed after about six weeks of pregnancy became law in Idaho. The state is the first to approve a copycat law modeled after the Texas measure that has forced thousands of people to cross state lines for abortion procedures—or give birth to a child against their will—if they do not wish to be pregnant.
Though he signed the bill into law, Idaho Gov. Brad Little, a Republican, expressed concerns that it may not survive judicial scrutiny. “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,” he wrote in a letter to Lt. Gov. Janice McGeachin.
Little is referring to the law’s creation of bounties on abortion providers. Like the Texas ban, the Idaho law relies on private citizens, not the state, to enforce it through the threat of ruinous financial penalties. When the Idaho law takes effect in 30 days, anyone who performs an abortion after the detection of fetal cardiac activity can be sued for at least $20,000 by “the father of the preborn child, a grandparent of the preborn child, a sibling of the preborn child, or an aunt or uncle of the preborn child.”
Each one of those members of the patient’s family (and the patient herself) will be able to collect a minimum of $20,000, plus legal fees, from the medical professional who terminates a pregnancy. The threat of such lawsuits will be severe enough to end legal abortion in Idaho after six weeks of pregnancy, as the broader Texas law—which allows any civilian to sue any person who “aids or abets” an abortion—has done since it took effect in September.
Idaho lawmakers have praised Texas for pioneering that bounty system, which has been effectively endorsed by both the Supreme Court and the Texas Supreme Court. If the state is not involved in enforcing the law, the courts say, the courts cannot stop it. “Texas’ clever, private course of action did good,” Rep. Steven Harris, the Idaho bill’s co-sponsor, told the New York Times.
The Idaho law allows an exception for abortions performed in cases of rape or incest, but only if the pregnant survivor files a police report. And even if she does, her rapist’s family members would still be able to sue her abortion provider—making abortions in such cases too risky for most, if not all, providers to perform. The law’s exception for medical emergencies only kicks in when a pregnant person is at immediate risk of death or “substantial and irreversible impairment of a major bodily function.”
[snip]
