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Idaho legislature approves bill banning abortion after six weeks, modeling its legislation on restrictive Texas law

Abortion rights proponents demonstrate outside of the U.S. Supreme Court. (Samuel Corum/Bloomberg)

The Idaho House on Monday approved a Republican bill that would ban abortions after six weeks of pregnancy, becoming the first state to copy parts of the restrictive Texas law that has banned most abortions in the state.

The vote was 51-14.

The Idaho Senate approved the bill earlier this month. The measure heads to Gov. Brad Little (R), who has supported similar abortion bans but has not commented on this particular bill, which includes exceptions for rape, incest and medical emergencies.

Idaho’s current law allows for abortions until a fetus is viable outside the womb, around 22 to 24 weeks. Another six-week abortion ban in Idaho has been stalled since it was passed and signed by Little last spring, requiring a favorable court ruling on a similar law elsewhere in the country before it can take effect.

If signed by the governor, the new version of Idaho’s abortion ban could take effect as early as April, several months before the Supreme Court is expected to rule on Mississippi’s 15-week abortion ban in a case that could overturn or significantly weaken Roe v. Wade, the landmark 1973 ruling that guaranteed the right to abortion.

While they wait for the Supreme Court ruling, Republican lawmakers in at least 12 states have introduced bills modeled after the Texas ban, which employs a highly unusual legal strategy: empowering private citizens to sue anyone who helps facilitate an abortion after the legal limit.

While Idaho lawmakers embraced the novel enforcement strategy behind the Texas law, they also made several significant changes to the legislation. The Idaho version of the bill narrows the list of people who can sue and be sued. Unlike Senate Bill 8 in Texas, which allows lawsuits against anyone who helps facilitate an abortion, from the receptionist who schedules the procedure to the Uber driver who takes a patient to their appointment, the Idaho law only permits lawsuits against abortion providers. They could be sued for up to four years after the abortion.

The Idaho legislation can only be enforced by family members, including the father of the fetus, and the fetus’s siblings, grandparents and aunts and uncles, as opposed to any private citizen anywhere in the United States, as the case in the Texas law.

The Idaho bill offers at least $20,000 to anyone who sues successfully.

Ahead of the vote, state Rep. Barbara Ehardt (R), who co-sponsored the legislation, emphasized that the Texas ban has “withstood three challenges,” referring to the three occasions in which the U.S. Supreme Court passed up an opportunity to block the law since it took effect in September.

“Abortion is not a constitutional right,” Ehardt said. “The Supreme Court in 1973 did something that was never allowed in the first place.”

Rep. Steven Harris (R), another co-sponsor, characterized the Texas ban as “clever.”

In debate on the House floor, Democratic lawmakers seized on his words.

“This bill is not clever, it’s absurd,” said state Rep. Lauren Necochea (D). “Its impacts are cruel and it is blatantly unconstitutional.”

Earlier this month, Democratic lawmakers in the Senate urged Republicans to consider the constitutionality of the legislation. Some predicted that the law would stall in the courts, burying the state government in legal fees.

“We may not be putting ourselves in a Texas scenario,” said state Sen. Grant Burgoyne (D) ahead of the Senate vote. “I think the Idaho court is going to have some real difficulty.”

Planned Parenthood and other abortion rights advocates in Idaho “will be seeking every opportunity to pursue legal action,” said Jennifer Allen, chief executive of Planned Parenthood Alliance Advocates.

While the Texas abortion ban was heard by the 5th Circuit Court of Appeals, widely known as the most conservative circuit court in the country, the Idaho ban would by heard by the 9th Circuit, where justices might be more open to arguments from abortion rights groups, said Lisa Humes-Schulz, vice president of policy and regulatory affairs at Planned Parenthood Votes Northwest and Hawaii, who advocates for Planned Parenthood in Idaho.

But Humes-Schulz said she’s still worried. With new Republican appointees joining courts across the country, she said, “we’re not taking anything for granted.”

Abortion is already difficult to access in Idaho, a large, rural state with only three abortion clinics.

Allen warned that this law could empower abusive partners and their families to lash out at someone who undergoes an abortion in Idaho. The patient could be called as a witness in one of these lawsuits, according to Allen.

“It creates an incredible cascade of risks for people who get abortions,” she said.