The ban, modeled on a Texas law that has survived legal challenges, will take effect next month.
This story was originally published by The 19th.
Idaho has become the second state to ban abortion after six weeks, with Gov. Brad Little signing the bill known as Senate Bill 1309 on Wednesday, Mar. 23. The law will take effect 30 days after signing, on April 22, barring court challenges.
Planned Parenthood, which operates the state’s three abortion clinics, has said it will not offer abortions past six weeks if the bill becomes law.
“This will absolutely lead to an almost complete elimination of abortion access in Idaho,” said Lisa Humes-Schulz, vice president of policy and regulatory affairs for Planned Parenthood Alliance Advocates Northwest, the organization’s regional advocacy arm.
At six weeks of pregnancy, many people do not realize they have conceived. About two-thirds of abortions in Idaho occur after six weeks of pregnancy, according to 2019 data collected by the Centers for Disease Control and Prevention.
The Idaho law is modeled after a law currently in effect in Texas. That law is unlike previous abortion restrictions: It deputizes private citizens to bring civil lawsuits against anyone they suspect performed or helped someone obtain an abortion after six weeks of pregnancy. It has resulted in Texas abortion providers no longer offering the service to anyone who is past six weeks.
The Supreme Court has declined to block Texas’s law, which appears to violate Roe v. Wade, the 1973 case that guarantees the right to an abortion up until a fetus can independently live outside the womb, something that typically occurs around 23 to 25 weeks of pregnancy. A conservative majority of justices has said abortion providers do not have the right to sue the state officials—such as court clerks—who process civil lawsuits, which makes it harder for them to challenge the law.
The court’s decisions were directly cited by the bill’s supporters as reason to pass a similar law in Idaho.
“The Supreme Court has had several opportunities to block enforcement of similar laws in Texas, which they have not done three different times,” said the bill’s sponsor, state Sen. Patti Ann Lodge, from the Senate floor.
In Texas, anyone can sue for damages. Idaho’s bill allows only the individual or family to sue—meaning the person who received an abortion, their parents, their other children, their siblings or in-laws and whoever helped conceive the fetus. Under S.B. 1309, only the doctor who provided the abortion can be sued. Texas’s law held liable anyone who “aided or abetted” the provision of an abortion: someone who helped pay for the procedure or who gave a friend a ride to the clinic, for instance.
Those changes appear to be an effort to escape some of the criticism levied by Democrats, independents and even some Republicans against the Texas’s law. In a letter to the state legislature, Little said that while he had signed the ban, he worried its enforcement mechanism would “be proven both unconstitutional and unwise.”
“This is the first time we have seen this language for a six-week ban, and it looks like a response to the criticism that [in Texas] anyone can sue,” said Elizabeth Nash, who tracks state policy for the Guttmacher Institute, a national reproductive health policy organization.
In a letter to a state lawmaker, Idaho’s chief deputy attorney general has suggested that the proposed law is unconstitutional and would be vulnerable to legal challenges. If enacted, the bill is likely to be challenged in court. But the fact that Texas’s law has avoided being struck down—combined with the quick timeline for Idaho’s bill to take effect—means there is a strong likelihood that the six-week ban would take effect after being passed and signed, Nash said.
Even with a narrower roster of potential plaintiffs, the threat of a lawsuit remains powerful. A successful plaintiff would receive damages of at least $20,000—double the minimum penalty established in the Texas law.
The bill has exceptions for people who become pregnant through rape or incest, but the process is likely to deter many. To qualify for this exception, the pregnant person needs to have previously reported the rape or incest to law enforcement and show a police report to the doctor providing an abortion.
“The vast majority of people don’t even report their rape or incest to the police,” Humes-Schulz said. “While it is an exception on paper, in reality people really aren’t going to be able to access it.”
Texas offers a preview of the potential impact. In September, the Texas law resulted in abortions performed in-state plummetting by 60 percent. Patients have traveled largely out of state for care, with about 1,400 Texans traveling elsewhere each month to receive an abortion.
Clinics in neighboring states have seen their patient volumes surge as more Texans travel out of state. If Idaho sees a similar result, patients would probably have to travel to Washington, Oregon, Wyoming or Montana for care, going an average of 250 miles each way for an abortion, Nash said. Planned Parenthood of the Rocky Mountains, which operates in Colorado, could become another destination—direct flights operate from Boise to Denver and Boulder, as well as from Idaho Falls.
In Idaho, insurance generally does not cover abortion, which costs hundreds of dollars at a minimum. Patients must make two visits to a clinic, with a 24-hour waiting period in between, before the procedure.
Because the first sign of pregnancy is often a missed menstrual period, the earliest someone would realize they have conceived is generally at four weeks. Scrounging up the money, child care and time off work to travel for an abortion can take two to three weeks, Humes-Schulz said.
“By the time you get to six weeks into pregnancy, chances are it is very difficult to have gotten an abortion,” she said. “It’s not when you find out you become pregnant, but how long it takes you to get an abortion when you find out in idaho. There’s so few providers, a waiting period, you have to travel and raise money. That’s a big task.”
According to the bill, doctors who perform an abortion after six weeks could face criminal charges, including jail time for two to five years and loss of their medical licenses. But those provisions would not take effect until at least one federal appeals court rules in favor of a six-week abortion ban, either in relation to this legislation or another state law. So far, no court has upheld such a law.
Idaho is not the only state weighing a Texas-inspired abortion ban. Oklahoma’s state Senate has passed one such bill. On Tuesday, the state’s House of Representative passed a similar bill—except that one would ban almost all abortions.
Meanwhile, the Supreme Court is currently weighing a case that examines the constitutionality of a 15-week abortion ban passed in Mississippi. A decision is expected in June or July, and many observers expect the court will overturn Roe v. Wade either partially or entirely.
If that case is overturned, Idaho has passed a so-called “trigger ban,” which could, if it takes effect, outlaw all abortions.
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