Idaho Gov. Brad Little on March 23 signed into law a measure that bans abortions after a fetal heartbeat is detected, which is at about six weeks of pregnancy. The measure has an enforcement mechanism inspired by a Texas law that allows private citizens to file lawsuits against abortion providers.
The governor also noted in his letter, however: “While I support the pro-life policy in this legislation, I fear the novel civil enforcement mechanism will in short order be proven both unconstitutional and unwise.”
The 2021 law wasn’t in effect due to a trigger provision that means the measure would only be enacted if a federal appeals court upholds another heartbeat law.
But the latest measure the Idaho governor signed into law means that private citizens—certain family members of a woman who had the abortion—can now bring a civil lawsuit against the abortion provider for a minimum of $20,000 in damages within four years after the procedure.
Family members who can sue include the father, the grandparent, a sibling, or an aunt or uncle of the unborn child. An individual who caused the pregnancy through incest or rape can’t sue the abortion provider for damages, although their family can.
Little, in his letter advising of his signing of the bill, questioned the implications of the measure he'd just signed into law. He said the approach could be used by leftist-governed state governments to target constitutional rights, including gun rights.
“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 collective liberties. None of the rights we treasure are off limits,” he said. “How long before California, New York, and other states hostile to the First and Second Amendments use the same methods to target our religious freedoms and right to bear arms?”
The Idaho ban provides exceptions for rape and incest if the pregnant woman reports her rape or incest to the police and gives the police report to the abortion provider. But some say the exception for rape and incest would likely be impossible for many women to meet because Idaho law prevents the release of police reports in active investigations.
Little commented on the latest amendment in light of the above provision, saying victims of sexual assault may face unintended consequences under the measure.
“I appreciate the exception provided for victims of rape and incest, but the challenges and delays inherent in obtaining the requisite police report render the exception meaningless for many,” he wrote in his letter.
“I am particularly concerned for those vulnerable women and children who lack the capacity or familial support to report incest and sexual assault. Ultimately, this legislation risks traumatizing victims by affording monetary [incentives] to wrongdoers and family members of rapists.
“I remain committed to protecting the lives of preborn babies and strongly encourage the legislature to promptly rectify any unintended consequences with this legislation to ensure the state sufficiently protects the interests of victims of sexual assault.”
Idaho state Rep. Lauren Necochea, a Democrat, criticized the measure.
“The vigilante aspect of this bill is absurd,” she said, according to The Associated Press. “Its impacts are cruel, and it is blatantly unconstitutional.”
Rebecca Gibron, an official of Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, and Kentucky, which operates Idaho’s three abortion clinics, said the abortion provider will remain open and is committed to helping people “access the health care they need, including abortion,” AP reported.
“Since its implementation in September, 60 percent of the state’s abortion care has been eliminated,” the group said, referring to Texas.
