BOISE – Idaho lawmakers being called back to the Statehouse to pass a law similar to one in Texas banning most abortions is not likely, top elected officials said Thursday.
Republican Gov. Brad Little said it’s up to the Senate and House if they want to reconvene. Republican Senate Pro Tempore Chuck Winder and Republican House Speaker Scott Bedke said they’re not interested, partly because Idaho already has a similar abortion law to the one in Texas.
The U.S. Supreme Court late Wednesday let stand the Texas law that prohibits abortions once medical professionals can detect cardiac activity, usually around six weeks and before many women know they are pregnant.
Idaho has a similar measure signed into law by Little last April, but it only takes effect if a federal appeals court upholds such a law on its constitutional merits, which hasn’t happened. The Texas law took effect Wednesday after the 5th U.S. Circuit Court and U.S. Supreme Court declined to block the law from taking effect, but neither court ruled on the merits of the case.
Little can call a special session to bring lawmakers to the Statehouse, and Republican House Speaker Scott Bedke and Republican Senate Pro Tempore Chuck Winder say they can reconvene the Legislature because it never formally adjourned earlier this year.
But all three on Thursday were noncommittal.
Little’s spokeswoman Marissa Morrison in a statement said the House and Senate did not officially adjourn and are technically still in session.
“We are in uncharted constitutional territory, but the general consensus is the Legislature does not need the governor to take any action to resume the session,” she said.
Republican Senate Pro Tempore Chuck Winder, who was traveling, said by text message that he wouldn’t reconvene the Senate. “We already have a fetal heartbeat bill in Idaho,” he said.
Bedke also wasn’t interested in reconvening the House for various reasons.
He said it appears the U.S. Supreme Court is inclined to overturn Roe v. Wade, the 1973 Supreme Court decision legalizing abortion nationwide. A reversal of Roe would mean abortion policy would revert to the states, something many see as a real possibility with a 6-3 conservative majority on the court after former President Donald Trump appointed three justices.
The court’s decision on Wednesday to let stand the Texas law appeared to bolster that possibility.
“I think that signals that they’re going to leave much of the abortion decisions and the policies around that up to the states,” Bedke said. “I think that’s as it should be to protect the sanctity of life.”
Little in July signed onto an amicus brief in a different case before the U.S. Supreme Court that could overturn Roe. In that test case from Mississippi, the justices will consider whether states can ban abortions before a fetus can survive outside the womb. Viability occurs roughly at 24 weeks.
Idaho’s abortion bill passed the House 53-16 and the Senate 25-7 with no support from Democrats. Republicans in the House who opposed the bill generally did so because it allowed exceptions for rape and incest.
The Texas law has no exceptions in cases of rape or incest. Idaho’s 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.
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 detectible cardiac activity punishable by up to five years in prison. It would also allow the woman who receives the abortion to sue the provider.
Republican Rep. Bruce Skaug, who voted for Idaho’s abortion law, said he would support calling back lawmakers to pass a Texas-type abortion law.
“However, I don’t think there would be enough interest among my colleagues for a special session for that purpose,” Skaug said.
He noted a lack of support to reconvene the Legislature concerning private businesses requiring employees get vaccinated against COVID-19.
Among other potential problems in calling back lawmakers is the expense, costing thousands of dollars a day. A three-day special session last year ended up costing even more when protesters turned unruly, breaking a glass door and requiring extra police at the Statehouse. Those protesters would almost certainly return if the Legislature reconvened.
If Little called a special session, he could limit the topics to be discussed. If Bedke and Winder reconvened the Legislature, lawmakers could introduce multiple different types of legislation, including bills unrelated to abortion.
Also, many lawmakers are wary of turning the part-time Legislature into a full-time assembly with special sessions or reconvening calls.
Finally, lawmakers had to recess during the regular legislative session earlier this year after a COVID-19 outbreak among lawmakers, mainly Republicans who tend not to wear masks. Currently, COVID-19 cases are spiking in the state due the the delta variant and poor vaccination rates, overwhelming the state’s healthcare system.