Legislation & Lobbying

Idaho lawmakers pass abortion bill copying Texas; what can abortion-rights states do?

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shutterstock_Abortion Restriction paper, gavel and stethoscope

Image from Shutterstock. Photo by Jim Block.

Lawmakers in Idaho have approved an abortion bill modeled after Texas legislation that allows private citizens to enforce it.

The Idaho House of Representatives passed the bill Monday following approval by the state Senate. If the bill is signed by the Republican governor, Gov. Brad Little, Idaho would be the first state to copy the Texas approach, albeit with some modifications.

The Washington Post and the New York Times have coverage.

Like the Texas law, the Idaho legislation bans abortions after a fetal heartbeat is detected, which happens at about six weeks of pregnancy.

But the Idaho bill allows lawsuits only against abortion providers, unlike the Texas bill, which allows suits against anyone who aids an illegal abortion. And the Idaho bill allows suits only by the woman who had the abortion, as well as the father, siblings, grandparents, aunts and uncles of the fetus. Texas allows any private citizen to sue.

The Idaho bill provides for at least $20,000 in damages, while the Texas bill sets the amount at a minimum of $10,000. The Idaho law makes exceptions for rape, incest and medical emergencies, while the Texas bill has no exceptions for rape or incest.

By putting enforcement in the hands of private plaintiffs, both laws remove potential state defendants who could be sued in advance to block the law.

Chemerinsky Related article from ABAJournal.com: “Chemerinsky: Ruling in abortion cases will greatly affect women’s lives but won’t end controversy”

Abortion providers challenging the Texas law were stymied last week in their advance lawsuit to prevent enforcement after rulings by the U.S. Supreme Court and the Texas Supreme Court. Those courts ruled that state defendants named in the suit could not be sued because they had no enforcement authority.

The Idaho bill is a part of a “wave of state anti-abortion legislation” being considered by states in advance of the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, the New York Times reports in a guest essay. Dobbs considers Mississippi’s ban on most abortions after 15 weeks of pregnancy.

The essay highlights one approach incorporated in a Missouri bill. It would allow citizens to sue anyone who helps a Missouri resident get an abortion in another state.

“What’s alarming about the Missouri bill, and others like it, is that it suggests a new tactic in the coming abortion wars,” the essay authors wrote. “Some states will go beyond banning abortion within their borders. They will try to impose their policy preferences on other states, in an attempt to stop their citizens from getting abortions anywhere at all.”

The essay authors are David S. Cohen, Greer Donley and Rachel Rebouché, authors of an upcoming Columbia Law Review article titled, “The New Abortion Battleground.”

The authors suggest how abortion-rights states can fight back. They include:

• Banning state court assistance when a legal abortion is the subject of an out-of-state legal case.

• Blocking law enforcement from cooperating when legal abortions are subject to out-of-state investigations.

• Instructing medical boards and malpractice insurers to refrain from taking action against abortion providers who provide abortions for another state’s residents.

• Allow medical professionals to remotely prescribe medication abortions to residents of other states.

See also:

ABAJournal.com: “Supreme Court will hear Texas abortion case on expedited basis but refuses again to block the law”

ABAJournal.com: “SCOTUS considers expediting request to hear Texas abortion case, orders quick responses”

ABAJournal.com: “Convicted ex-lawyer files bizarre suit against doctor under Texas abortion law”

ABAJournal.com: “DOJ explores ways to challenge Texas abortion law; judge grants TRO against anti-abortion group”

ABAJournal.com: “How could the DOJ counter Texas abortion restrictions? Law prof suggests prosecution”

ABAJournal.com: “SCOTUS formally rejects request to block Texas abortion ban”

ABAJournal.com: “Abortion providers ask Supreme Court to block Texas heartbeat law from taking effect”

ABAJournal.com: “Conservative SCOTUS justices question abortion decisions but delay action on Mississippi’s viability cert petition”

ABAJournal.com: “Supreme Court should uphold precedent in Mississippi abortion case, ABA amicus brief says”

ABAJournal.com: “ABA urges Supreme Court to rule US can sue to block unconstitutional Texas abortion law”

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