The Idaho House of Representatives passed a bill Monday that prohibits abortion after six weeks of pregnancy It includes a Texas-style mechanism that leaves enforcement to private citizens, rather than the state government, to sue abortion providers.
In a 51-to-14 vote, the state House approved the measure after the Senate passed it earlier this month. It now goes to the desk of Republican governor Brad Little, who is expected to enact it.
The legislation borrows from a Texas version that went into effect in September in that it allows any private individual to sue anyone who performs, aids, or abets an abortion after a fetal heartbeat is detected, typically around six weeks of gestation. However, the Idaho bill permits only family members, including the unborn baby’s father, siblings, grandparents, aunts, and uncles, to file a lawsuit against the provider. The enforcement provision includes an exception for rape, forbidding the rapist involved in a pregnancy from suing a provider (but allowing relatives of the rapist to sue), as well as incest and medical emergencies, to protect the life of the mother.
The Supreme Court dismissed an opportunity to review the Texas law in September, allowing it to become active in the state, but it has allowed challenges from abortion clinics to proceed against state licensing officials. After many months of litigation, the state supreme court denied the petition of abortion providers in Texas in an unanimous ruling, declaring that licensing officials have no authority, direct or indirect, to enforce the Texas Heartbeat Act. For Texas abortion providers, violation of the Heartbeat Act probably means expensive litigation.
There is an Idaho fetal-heartbeat law on the books that deems it a felony for any medical practice to provide an abortion after a heartbeat is detected. The penalty is up to five years in prison. However, that law includes a “trigger” provision with the condition that a court must turn over a favorable ruling on a similar law somewhere in the country for it to go into effect.
Like the Texas law, the Idaho bill would allow plaintiffs to seek monetary damages, cash payments of $20,000, as well as legal fee amounts, from the abortion provider. Petitioners can sue up to four years after the date of the abortion.
The Idaho legislative action comes as the Supreme Court is scheduled to weigh in on Dobbs v. Jackson Women’s Health Organization, a landmark abortion case concerning a Mississippi law that prohibits abortions after 15 weeks of pregnancy. That cases forces the court to examine the standard of fetal viability, or 24–28 weeks of gestation, and whether abortion should be allowed prior to that. If the high court rules in favor of the Mississippi ban, Roe will effectively be reversed, deferring the issue to the states to create their own legislation permitting or barring abortion at various stages of pregnancy.
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