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House sends Texas-styled abortion measure to Idaho governor

UPDATED: Mon., March 14, 2022

A procedure room at Planned Parenthood in Meridian, Idaho, one of the few clinics in the state that offers abortions.  (Darin Oswald/Idaho Statesman)
A procedure room at Planned Parenthood in Meridian, Idaho, one of the few clinics in the state that offers abortions. (Darin Oswald/Idaho Statesman)
By Ryan Suppe Idaho Statesman

BOISE – A bill that seeks to deter most abortions in Idaho is heading to Republican Gov. Brad Little’s desk.

It would allow family members to sue abortion providers for procedures done after about six weeks of pregnancy – before many women know they’re pregnant. The Idaho House on Monday overwhelmingly cleared the bill on a 51-14, nearly a party-line vote. The Senate passed it on March 3.

The bill is modeled after a recent Texas law that created a mechanism allowing private parties to sue providers who perform an abortion after a fetal heartbeat is detected.

“They did a very clever thing,” said state Rep. Steven Harris, a Meridian Republican and the Idaho bill’s House sponsor. “They allowed for a civil cause of action, meaning that you could be sued in civil court if someone performs an illegal abortion post-heartbeat.”

The Idaho Family Policy Center crafted the private enforcement legislation and lobbied the Legislature to prevent most abortions after six weeks of pregnancy. Around five or six weeks is generally when an ultrasound can pick up a so-called “fetal heartbeat,” though specialized physicians have said the sounds are more accurately described as electrical activity.

All 12 House Democrats voted against the measure. They were joined by GOP state Reps. Fred Wood, a retired physician from Boise, and Heather Scott, of Blanchard. Scott fiercely opposes abortion, but she has said that she won’t support abortion-related legislation that doesn’t establish criminal penalties.

State Rep. Lauren Necochea, a Boise Democrat, called the legislation an “absurd” plan to “take away all access to abortion care.” It would mandate transvaginal ultrasounds – to detect a heartbeat – when they’re not medically necessary, and it would primarily affect low-income women, who can’t afford to travel out of state for an abortion, she said. The bill would also turn family members “into potential enemies,” Necochea said.

“If I have an abortion, it is no business of my brother, my brother-in-law, his wife or anyone else in my family,” she said. “Its impacts are cruel, and it is blatantly unconstitutional.”

In a recent legal opinion, Idaho Chief Deputy Attorney General Brian Kane said the bill likely would violate Americans’ constitutional right to an abortion by effectively prohibiting “almost all” abortions before “viability,” which is when the baby can survive outside the womb.

The legislation may also violate the U.S. Constitution’s equal protection clause by treating abortion providers differently than other medical providers who violate other state laws, Kane wrote. And the bill may unconstitutionally delegate legal enforcement power to private citizens and violate the Idaho Constitution’s separation of powers, Kane wrote.

Last year, Texas passed a law that outlawed abortions after six weeks and granted private parties the ability to sue providers or anyone else they suspect is “aiding and abetting” abortions after the six-week period. So far, the law has survived multiple court challenges.

The Idaho proposal differs from the Texas law. Only family members of the patient would be allowed to file a lawsuit, and a complaint could not be filed against someone else – such as a patient’s friend – who aids or abets an abortion.

The ability to sue abortion providers would take effect 30 days after its passage, with approval from both legislative chambers and the governor.

Last year, he signed Idaho’s “fetal heartbeat” law, which prohibited abortions after five or six weeks of pregnancy, except in medical emergencies or in cases of rape or incest. That bill has a trigger clause so it can only become law if a federal appeals court rules in favor of a similar measure.

The private enforcement mechanism that the new bill seeks to establish does not have a trigger. It would take affect 30 days after the governor signs it.

The same day, on Idaho Women’s Day, the House also rejected a bill that would have required insurance providers to expand their contraceptive coverage to six months. The Senate cleared the bill by three votes, but the House killed it on a 24-44 vote.

Following the House vote, bill sponsor state Sen. Melissa Wintrow, a Boise Democrat, said in a tweet that increasing access to birth control supports family planning, and if House Republicans want to stop abortion, her bill “should’ve passed unanimously.”

“Instead, they’re more interested in controlling women than (government) helping folks take responsibility for their lives,” Wintrow wrote.

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