Explained: What is Idaho’s anti-abortion law?

Earlier this month, the Texas Supreme Court further restricted the possibility that the state’s anti-abortion law could be blocked.

Idaho has become the newest state to enact some form of legislation related to the restricting of abortion rights. Some other states that have passed similar legislation include Alabama, Arizona, Florida, Idaho, Maryland, Minnesota, Missouri, Ohio, and Wisconsin.

Idaho’s announcement has come a few months before the US Supreme Court is expected to take a call on the landmark Roe versus Wade judgment of 1973, which said that undue state restrictions on abortion were unconstitutional. In December last year, the Supreme Court, which has a conservative majority, signaled that they might overturn the landmark judgment.

The Idaho bill

The Idaho bill called SB 1309 says the following: “A person may not perform an abortion on a pregnant woman when a 43 fetal heartbeat has been detected, except in the case of a medical emergency…”. The exceptions include pregnancies resulting from rape and incest.

In the case of the Texas bill, ordinary citizens instead of state officials are incentivised to enforce the law. Essentially, the law authorises private individuals to sue those who provide abortions after six weeks by bringing civil action against them. Such an individual is also offered $10,000 in damages apart from attorney’s fee and costs.

On the other hand, SB 1309 allows family members of the person who gets an abortion to sue abortion providers after six weeks, or after cardiac activity has been detected. Further, the medical professionals who knowingly or “recklessly” attempted, performed, or induced an abortion in violation of the law are liable to pay upto $20,000 in damages.

Unless it is challenged, the law will take effect within a period of 30 days.

What is unique about the structure of SB8 and SB1309?

While Idaho’s governor signed the bill on Wednesday, in a letter to the state Senate president, he expressed his concern about the “novel civil enforcement” element of the bill that he said will be proven “unconstitutional” and “unwise” in the short term, until the country’s highest court invalidates Roe versus Wade.

The unique legal strategy of incentivising ordinary people to enforce the law, first articulated by SB8 (the Texas anti-abortion bill), has made it difficult for pro-choicers to challenge the legislation in court.

The structure of the SB8 has been criticised by some conservatives too, who have warned that Democrats could implement similar laws in other states and that the laws could go against other constitutionally protected rights that are important for Republicans, such as gun control and religious practice or mask mandates.

Last year, the organisation called the Firearms Policy Coalition filed a brief in the court against the state of Texas because it felt that the anti-abortion law could be used as a template to restrict other individual rights protected by the constitution.

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