Idaho became the first state on Monday to pass a bill modeled after Texas’ strict law that uses private citizens to enforce a ban on abortions after about six weeks of pregnancy and to avoid court challenges to the ban’s constitutionality.
The Idaho House, which has a Republican majority, voted 51-14 in favor of the bill, and the state Senate approved it earlier this month. It now heads to Gov. Brad Little, a Republican. While Little has not commented on this bill specifically, he signed a similar abortion restriction last year.
Idaho’s move exemplifies the battle over abortion access that’s playing out in states across the country, just months before the Supreme Court is expected to issue a ruling that could unwind or overturn Roe v. Wade, the 1973 decision that established the constitutional right to abortion. Under current law, states cannot ban abortion before a fetus is viable, which typically occurs between 23 and 24 weeks of pregnancy. But the Supreme Court’s conservative majority signaled last spring that it may be willing to change that standard when it agreed to hear arguments over a Mississippi law banning abortion after 15 weeks.
As anti-abortion state lawmakers await the Court’s decision, they are rushing to pass new legislation that would restrict abortion. Even as Roe technically remains the law of the land, the shifting legal and political landscape is making it more difficult for abortion rights advocates to stop them.
If Idaho’s governor signs the new bill, it will take effect 30 days after that signing—changing the state’s law just months before the Supreme Court is expected to rule. At least 10 states have introduced bans copying parts of Texas’ private enforcement mechanism, which was explicitly designed to avoid judicial review.
The anti-abortion state lawmakers’ strategy has worked so far, as the Supreme Court has declined to block the Texas law since it took effect in September. The Texas Supreme Court also recently said it could not stop the ban because the law prohibits state officials from enforcing it. Idaho’s lawmakers on Monday said this was a positive sign for their bill.
“Texas’ clever, private course of action did good,” Republican State Rep. Steven Harris, the bill’s co-sponsor, said on the House floor ahead of the vote on Monday. “It stopped physical abortions, chemical abortions in their tracks.” He added that despite legal challenges in front of the Supreme Court, “abortions are still being stopped in Texas.”
Democratic lawmakers pushed back ahead of the vote. “This bill is not clever, it’s absurd,” state Rep. Lauren Necochea said during debate. “Its impacts are cruel and it is blatantly unconstitutional.”
What impact would the Idaho ban have?
While Idaho’s bill was modeled after the Texas bill’s enforcement mechanism, there are some key differences. The Texas law allows any private citizen to sue anyone who “aids or abets” someone in getting an abortion after fetal cardiac activity is detected, which happens around six weeks, before many people know they are pregnant. The Texas law also provides a reward of at least $10,000 plus legal fees for successful plaintiffs. The Idaho bill, in contrast, narrows the potential litigants, allowing only family members of the fetus, including the mother and father, the fetus’ siblings, grandparents, aunts and uncles, to sue. The bill also says that such family members can only sue abortion providers. It sets a minimum reward of $20,000 plus legal fees, and allows lawsuits for up to four years after an abortion.
The Texas law has no exceptions for pregnancies resulting from rape or incest. The Idaho bill does allow for certain, limited exceptions. A pregnant person must have filed a police report claiming the rape or incest—a process that is likely to deter many from using the exception. The bill states that a rapist cannot sue an abortion provider if his victim seeks an abortion, but it is ambiguous on key details. The bill does not say, for example, whether an accused rapist can sue an abortion provider if his alleged victim seeks an abortion; rape trials often take months or years to complete. The bill does allow a rapist’s family members to sue.
Planned Parenthood, which runs the only three abortion clinics in Idaho, says all three will comply with the bill if it becomes law. In Texas, data showed that abortions in the state dropped 60% after its abortion ban went into effect. Abortion rights advocates say the decrease may be larger in Idaho due to the existing barriers and the rural nature of the state. To access an abortion, a person must gather the money to pay for it, as well as arrange travel and other considerations including time off work and child care. This is already more difficult for people with low incomes, people of color and those in rural areas, advocates note. If patients have to travel out of state, all of those steps are more difficult.
“This bill would have a devastating impact on the people of Idaho,” says Dr. Erin Berry, Washington state medical director of Planned Parenthood Great Northwest, Hawaíʻi, Alaska, Indiana, and Kentucky, who also provides abortions in Idaho.
Berry has been working with other Planned Parenthood facilities and independent abortion clinics in the region to coordinate on how they will help patients find appointments, but she says the COVID-19 pandemic exacerbated the situation. “Every clinic that I’ve talked to in the region is understaffed,” she says. “We already struggle with the patients that we have because of staffing and so we are doing the best that we can to prepare, to increase appointment times, to increase staffing—but we have our limits.”
Planned Parenthood is looking at how to challenge the law in court, says Lisa Humes-Schulz, vice president of policy and regulatory affairs for Planned Parenthood Alliance Advocates Northwest, the organization’s advocacy arm in the region.
Last year, Idaho passed another law criminalizing abortion after fetal cardiac activity is detected, but because lawmakers knew it was likely unconstitutional, it contained a trigger that would only allow it to go into effect if a U.S. appeals court upheld a similar law in another state. Some lawmakers also raised that concern this year. The state’s deputy attorney general issued an opinion saying the new bill would also “likely be found unconstitutional under the Court’s current jurisprudence.”
If it is challenged, the Idaho ban would eventually be heard by the Ninth Circuit Court of Appeals, which has been more open to abortion rights in the past than the conservative Fifth Circuit, which heard the Texas case, Humes-Schulz says. But, she adds, former President Donald Trump changed the make up of the Ninth Circuit by appointing more conservative judges.
“We also know that coming down the pike is that challenge to Roe vs. Wade at the Supreme Court, so we do fear that even if we do secure a victory that could be short lived,” Humes-Schulz says. “What this bill is really doing is expediting what could already happen if the Supreme Court does open the door in June.”
‘A transition moment’ for abortion
Advocates are weighing similar considerations in other states.
Oklahoma, which has seen a colossal increase in demand for abortions from patients fleeing Texas over the past six months, has introduced several aggressive abortion restrictions, including its own Texas-style six-week ban and a bill that would ban abortions 30 days after a person’s last menstrual period, effectively outlawing all abortions.
Florida recently passed a 15-week ban modeled on the Mississippi law in front of the Supreme Court, and Arizona is considering a 15-week bill too.
West Virginia lawmakers tried to pass a 15-week ban, but over the weekend in the last minutes before their legislative session ended, they opted instead to ban abortions if someone is seeking one because of prenatal testing. Kentucky, meanwhile, is moving a package of abortion restrictions that advocates say would effectively end all abortion access in the state by creating new medically unnecessary requirements that providers cannot meet.
Many of these bills would not have made it as far in previous legislative sessions. But, like in Idaho, their sponsors often say they have been inspired by the Supreme Court or Texas case and want to have new laws in place in case the justices rule in their favor. “We are absolutely in what is likely to be a transition moment for the abortion rights and abortion access movement,” says Elisabeth Smith, director for state policy and advocacy at the Center for Reproductive Rights. “Roe v. Wade is good law. There is a federal constitutional right to abortion. And yet, we have seen states enact more and more blatantly unconstitutional abortion bans and abortion restrictions.”
Read More: Justices Seem Poised to Weaken Roe v. Wade
Even with Roe still technically in place, the coming Supreme Court decision has already affected the way that activists and abortion providers advocate against proposed restrictions and challenge them in court.
One change is that the bills this year seem to have been written more quickly than in the past, according to Smith, and are “poorly drafted.” That means they are sometimes written in confusing ways, or fail to convey the lawmakers intensions, leaving advocates to interpret the scope of the legislation impact.
Fewer lawmakers also seem concerned about their laws being challenged in court, Smith and other reproductive rights advocates say. In the past, abortion rights groups would often promise to sue states over unconstitutional abortion restrictions and announce legal challenges immediately after governors signed bills into law. This year, groups have often been more cautious in public statements—promising to “explore all legal options” or “continue fighting” rather than committing to one course of action.
“In previous years, we made that argument. And said, in many contexts, if you pass this law, we will file a lawsuit. Now even that threat is ignored, because these hostile legislators really do think that the end of Roe is here,” Smith says.
‘Stuck in Limbo’
When abortion rights groups do sue, the new legal landscape may prove complicated. Some bills, like Idaho’s, include emergency clauses that allow them go into effect much more quickly than other legislation. This can make it difficult to prepare a lawsuit and get a law blocked before it takes effect, says Hume-Schulz.
Laws that go into effect after June, when the Supreme Court term ends, may be judged by a different standard. The Center for Reproductive Rights, which represents the Mississippi abortion clinic in the challenge to Roe before the Supreme Court, notes that the uncertainty over the future of abortion law makes it difficult to plan ahead. “Until we know, we will be in a place of having arguments about current law that are strong and have been upheld for decades, but we don’t know what our next arguments will be,” Smith says.
In some cases, legal uncertainty has led lower court judges to put cases on hold until the Supreme Court rules. For example, the state of Arkansas asked the Eighth Circuit last summer to delay ruling on an embattled state abortion ban until after the Supreme Court rules. The Eleventh Circuit Court of Appeals later made a similar move in case about Georgia’s six-week abortion ban.
In contrast, the Sixth Circuit Court of Appeals recently allowed a Tennessee law that bans abortions sought because of the fetus’s race, sex or Down syndrome diagnosis to take effect. The judges then halted progress on an appeal, leaving the abortion providers challenging the Tennessee law “stuck in limbo,” says Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project and one of the lawyers in that case.
While the Sixth Circuit majority did not give a reason for the delay, Judge Karen Nelson Moore, who wrote a dissent in the decision, criticized her colleagues’ decision and said the only explanation was that they are hoping to apply a new standard after the Supreme Court rules on Roe. “This majority’s decision at this juncture showcases a growing trend among federal courts to use facially neutral mechanisms to delay the adjudication of laws that significantly impair constitutional rights,” she wrote.
Amiri says that the Sixth Circuit Court judges’ decision is, so far, an outlier. But as more abortion restrictions are passed and potentially challenged this year, Moore’s dissent signals that other courts may act similarly.
While all eyes are on the Supreme Court’s pending decision, activists on both sides of the debate are trying to shape abortion access more immediately. Many of the changes that happen in the next few months will define the battlefield for what’s to come.
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