Will Idaho’s new abortion law survive? Here’s what’s happening with Texas’ law
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Special report: Idaho’s abortion law
Idaho Gov. Brad Little signed a controversial bill based on the Texas law while expressing concerns over its legality. Here’s our coverage of Senate Bill 1309, which allows family members to sue abortion providers for a minimum of $20,000.
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Idaho Gov. Brad Little on Wednesday signed a bill that will allow private parties to sue abortion providers, but questions remain — including from the governor — about whether the law will survive legal challenges.
The new law allows family to sue abortion providers after about six weeks of pregnancy — before many women know they’re pregnant. It’s modeled after a recent Texas law with a similar private enforcement mechanism, which was designed to evade judicial review.
But Idaho has a different state constitution, noted Sen. Grant Burgoyne, D-Boise, who opposed Senate Bill 1309.
“Everybody just needs to understand that Idaho is different, because if we have our own state constitution violations, then that makes this very different from what happened in Texas,” Burgoyne told the Idaho Statesman.
Little signed the bill despite a state attorney’s warning that it likely violates the U.S. and Idaho constitutions and is vulnerable to legal challenges. Little said he had reservations, writing in his transmittal letter that he fears the “civil enforcement mechanism will in short order be proven both unconstitutional and unwise.”
“Deputizing private citizens to levy hefty monetary fines on the exercise of a disfavored but judicially recognized constitutional right for the purpose of evading court review undermines our constitutional form of government and weakens our collecting liberties,” Little wrote.
Texas law survives challenges
Last year, the Idaho Legislature passed and Little signed a “fetal heartbeat” trigger ban, which would become law if a federal appeals court rules in favor of a similar measure. The law is a government-enforced ban on abortion.
The U.S. Supreme Court is considering a constitutional challenge to Mississippi’s ban on abortion after 15 weeks of pregnancy. The court will decide whether pre-viability bans on abortions are constitutional. Viability — when a fetus can survive outside the womb — is about 24 weeks. A decision on the Mississippi law is expected this summer.
The court could effectively overturn Roe v. Wade, the 1973 case that legalized abortion through viability.
Borrowing from Texas’ bill, the new Idaho law is not a government-enforced ban on abortion, but instead allows private citizens to enforce a “fetal heartbeat” ban through a civil cause of action. The civil action established by the Texas law has proved difficult for abortion rights advocates to challenge on constitutional grounds because state officials don’t enforce it.
In recent months, the U.S. Supreme Court declined multiple requests to block the law. In December, the U.S. Supreme Court granted a narrow path for abortion providers to challenge the law. It ruled they could sue state medical licensing officials, who might discipline abortion providers over violating the Texas law — but left it open for the state courts to determine.
The Texas Supreme Court earlier this month closed that path when it ruled licensing officials have no enforcement power related to the civil action. Similarly, the Idaho law precludes licensing officials from enforcing the abortion ban.
The March ruling means the Texas law will likely remain in effect for the foreseeable future, said a news release from the Center for Reproductive Rights, which represents abortion providers challenging the law.
“With this ruling, the sliver of this case that we were left with is gone,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in the release. “An unconstitutional ban on abortion after six weeks continues unchecked in the state of Texas.”
Idaho law likely unconstitutional
Last year, a district court judge in Travis County, Texas, ruled that the private enforcement mechanism in the Texas law is unconstitutional.
The decision was a declaratory judgment — a binding judgment defining the legal relationship between the plaintiff and defendant — and did not affect other lawsuits on the Texas law. It also did not affect federal litigation.
But the Idaho attorney general’s office pointed to Judge David Peeples’ judgment as an example of how an Idaho court could rule on challenges to Senate Bill 1309.
Peeples ruled that the law is unconstitutional for three reasons. It unconstitutionally grants standings to parties who have not suffered an injury. It’s an unconsitutional delegation of enforcement power to private parties — which is barred by the Texas and Idaho constitutions. And the $10,000 civil fine in the Texas law is punishment without due process, a violation of the due process clause of the U.S. Constitution.
For similar reasons, a court would likely find Idaho’s new law unconstitutional, according to Idaho Chief Deputy Attorney General Brian Kane, who in February wrote a legal opinion on Senate Bill 1309.
The Idaho bill would allow a woman who received an abortion and her family members to seek at least $20,000 in damages. Constitutional standing is rooted in “distinct and palpable injury,” Kane wrote. But the new law would give statutory standing to family members based on the detection of a fetal heartbeat, not based on an injury.
“Here, it is difficult to see how a competent, adult woman who consented to have an abortion performed upon her can be said to have suffered an injury,” Kane wrote. He added that it would also be difficult for family members to establish an injury based on the loss of a possible future relation.
The lack of a cap on the $20,000 penalty is also concerning, Kane wrote.
“There does not appear to be any guidance as to what actual statutory damages awarded should be, other than that they cannot go below $20,000,” he wrote. “This alone could be found to violate the due process clause,” he added, since there’s no fair notice of the severity of the penalty.”
Burgoyne said he expects an abortion provider — with the financial means to incur legal costs — could seek a declaratory judgment and injunctive relief blocking the new law from enforcement.
“That case might be something that could be resolved fairly quickly,” Burgoyne said.
The new Idaho law goes into effect in 30 days.
This story was originally published March 23, 2022 at 3:01 PM.
