BOISE – A federal appeals court’s decision allowing a Texas fetal heartbeat law to take effect Wednesday isn’t enough to trigger Idaho’s similar fetal heartbeat law, but backers say it’s a near miss that bodes well for banning nearly all abortions in Idaho.
The Idaho law signed by Republican Gov. Brad Little in April contains a trigger mechanism putting it into effect 30 days after a federal appeals court upholds similar legislation in another state.
The 5th U.S. Circuit Court of Appeals refused to block enforcement of the Texas law, but the appeals court didn’t rule on its constitutionality, needed to trigger the Idaho law.
Still, backers of the Idaho law see the Texas case as a positive step.
“We’re excited, and we really do think that the heartbeat bill strategy is working, and we’re going to keep fighting this legal angle until all preborn babies are protected in Idaho,” said Blaine Conzatti, president of the Idaho Family Policy Center.
The Texas and Idaho laws ban abortions after a fetal heartbeat is detected, which can be as early as six weeks of pregnancy and before many women even know they are pregnant.
The Texas law has no exemptions in cases of rape or incest. The Idaho law has exceptions for rape, incest or medical emergency. The exception for rape and incest would likely be impossible for many women to meet, opponents say, because Idaho prevents the release of police reports in active investigations.
At least 12 other states have enacted bans on abortion early in pregnancy, but all but Texas’ law have been blocked from going into effect.
The U.S. Supreme Court, early Thursday morning, refused to block the ban. Further, the court wrote, “This order is not based on any conclusion about the constitutionality of Texas’s law.”
Texas also differs from Idaho because instead of setting criminal penalties, as other abortion restrictions do, it asks private people to enforce the ban by suing doctors or anyone who helps a woman get an abortion. Among other situations, that would include anyone who drives a woman to a clinic to get an abortion. Under the law, anyone who successfully sues another person would be entitled to at least $10,000.
The Idaho law makes providing an abortion to a woman whose embryo has detectable cardiac activity punishable by up to five years in prison. It would also allow the woman who receives the abortion to sue the provider.
Supporters of the Idaho law have said they would like it challenged in the 9th U.S. Circuit Court of Appeals and then decided at the U.S. Supreme Court, which has a 6-3 conservative majority after former President Donald Trump appointed three justices.
Ultimately, backers would like to see the Idaho law play a role in overturning Roe v. Wade, the 1973 Supreme Court decision legalizing abortion nationwide. A reversal of Roe would mean abortion policy would revert to the states.
“Right now, Roe v. Wade is effectively a dead letter in Texas,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement. “Texas’ pernicious abortion ban is now in effect, upending abortion care in the state, with devastating consequences for those without the means to go elsewhere to exercise their constitutional rights.”
“This is a loud alarm that access to abortion is in real danger, especially here in Idaho,” said Mistie DelliCarpini-Tolman, Idaho State Director at Planned Parenthood Alliance Advocates. “While abortion remains legal in Idaho today, a ban on abortion as early as six weeks could go into effect if the Supreme Court or another district court rules in favor of a similarly restrictive ban.”
In a related matter, Little in July signed onto an amicus brief in a different case before the U.S. Supreme Court that could overturn Roe.
He joined Republican governors from 11 other states in supporting a Mississippi law that would ban abortion at 15 weeks. That law would allow exceptions in cases of medical emergency or severe fetal abnormality.