The Idaho Senate voted in 2022 on party lines to pass a bill that would allow family members to sue abortion providers. (Screenshot courtesy of Idaho in Session)
Republicans in the Idaho Senate on Thursday passed a bill on party lines that would allow family members of a pregnant woman to file civil lawsuits against medical providers who perform an abortion after cardiac activity is detected in the embryo or fetus.
The body debated Senate Bill 1309 on the floor for about an hour, ultimately deciding on a 28-6 vote to send the bill to the House for consideration.
Bill sponsor Sen. Patti Anne Lodge, R-Huston, said the Senate will also consider a trailer bill in the coming days of the legislative session related to the main law. The trailer bill would make additional changes to the burden of proof for damages that must be met by the person filing the lawsuit, as well as legal options for the medical professional if the lawsuit is found to be frivolous.
During debate on the bill on the Senate floor, Sen. Grant Burgoyne, D-Boise, cited an opinion from the Idaho Attorney General’s office that says the bill would likely violate a pregnant woman’s constitutional rights under existing federal law.
“(Senate Bill) 1309 would effectively prohibit almost all abortions in the State of Idaho beginning at about six weeks gestational age 30 days after enactment. Should a court adjudicate a challenge to the law on the merits of the restriction on abortions, it would likely be found unconstitutional,” Deputy Attorney General Brian Kane said in the opinion.
Proponents of the bill, including Sen. C. Scott Grow, R-Eagle, said it provides protections and advocacy for those who cannot protect and advocate for themselves.
“If it is not human, what is it? If it is not alive, why does it require outside intervention to be terminated?” he asked during debate of the bill.
Opponents of the bill, including Senate Minority Leader Michelle Stennett, D-Ketchum, said with such a short six-week timeline, the bill could prevent nearly all women from accessing abortion before they know they are pregnant. She said the bill also interferes with Idahoans’ right to make health care decisions in private with the guidance of their doctor.
“I find it pretty surprising that in some instances, we want to make sure that we (don’t) have a government overreach … on vaccinations and masks and all kinds of things, but somehow it’s OK to do it here,” she said.
Idaho law similar to Texas legislation that went before U.S. Supreme Court
Burgoyne urged senators to consider the potential constitutional violations the bill could create and court challenges against the state that taxpayers would have to pay for should the legislation be signed into law.
“The proponents have been very candid in their hope and belief that the mere passage of this legislation into law will stop abortions in Idaho and set up a Texas situation,” he said while debating against the bill.
In September, the U.S. Supreme Court did not grant an injunction that would have kept a similar law in Texas from going into effect because the law relies on enforcement through private action rather than through the government.
The Texas law goes further than Idaho’s version, because it allows individuals to sue medical professionals who perform abortions or anyone else who might be “aiding and abetting” abortions after six weeks, such as a partner or ride share driver who takes the person to an appointment. Under Idaho’s bill, only the abortion provider would be subject to litigation.
Idaho’s law would include exceptions for medical emergencies and for women who have become pregnant through rape or incest — the Texas law does not include those exceptions. Under the Idaho bill, however, the woman must report the rape to law enforcement and provide a police report to the physician.
The Idaho law would allow a lawsuit to be brought against a medical professional up to four years after the abortion was performed.
Sen. Christy Zito, R-Hammett, said human life should be protected at all stages during a pregnancy.
“Now life isn’t perfect, it can be ugly and it can be dirty and it can be brutal,” she said. “It can be vicious. But the greatest beauty and the greatest glory is that of human life. And for us to protect that and to watch out for those babies is the greatest thing that we can do.”
The bill will next be heard by a House committee and must be passed by the full House before it heads to Gov. Brad Little’s desk for consideration.
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