Planned Parenthood sued the state of Idaho Wednesday in an effort to block its near-total ban on abortion before it takes effect in April—but the law is based on Texas’ controversial policy that courts have repeatedly upheld, so it’s unclear whether the challenge will be successful.
Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky and an Idaho doctor asked the Idaho Supreme Court to strike down SB 1309, which was signed into law last week and is set to take effect on April 22.
The law bans all abortions after approximately six weeks of pregnancy—except in cases of rape, incest or medical emergencies—and is enforced not by public officials, but by family members of the fetus suing doctors if they perform the procedure, for which the plaintiffs can get at least $20,000 in damages.
The law copies Texas’ Senate Bill 8 (SB 8), which has been in effect since September 1 and is similarly enforced through private lawsuits against anyone who “aids or abets” an abortion in the state.
Planned Parenthood argues “the bill’s flaws are flagrant and many” and SB 1309 violates numerous provisions of the Idaho Constitution, including its rights to privacy, equal protection clause, due process clause and separation of powers.
The lawsuit also points out Idaho leaders likely agree SB 1309 is unlawful: the state Attorney General’s office informed the legislature the bill was “likely unconstitutional” before they passed it anyway, and Idaho Gov. Brad Little (R) said upon signing the law its “novel enforcement mechanism will in short order be proven unconstitutional and unwise.”
Idaho Attorney General Lawrence Wasden’s office has not yet responded to a request for comment.
“SB 1309 is an unprecedented power grab by the Idaho Legislature,” the plaintiffs wrote, adding that if the law takes effect, it will “[wreak] havoc on this State’s constitutional norms and the lives of its citizens.”
What We Don’t Know
Whether SB 1309 will be allowed to take effect. Courts have repeatedly let Texas’ SB 8 stand because of its lawsuit provision that the Idaho law copies, as the fact that private citizens enforce the law and not the government means it’s hard to name defendants that can actually be blocked from enforcing it. The U.S. Supreme Court, Texas Supreme Court and 5th Circuit Court of Appeals have all ruled in Texas’ favor, and abortion providers challenging the law have had their case decimated as courts rule they can’t sue the state officials they’ve named. The Idaho case will face a similar challenge, given that it’s against the state, and SB 1309 says state officials don’t actually enforce the law. That being said, some lower courts have ruled against the Texas law—their decisions have just either been nonbinding or later overturned—and the Texas Supreme Court and 5th Circuit are particularly conservative-leaning. That means it’s possible the Idaho case could be heard by judges that are more sympathetic to Planned Parenthood’s case and block SB 1309.
Texas’ SB 8 was the most restrictive abortion law in the U.S. to take effect since Roe v. Wade was decided in 1973, and it has served as a blueprint to anti-abortion rights lawmakers whose abortion restrictions are typically struck down in court. Idaho was the first state to enact a law copying the Texas law’s lawsuit provision, but a string of other states could soon follow, including Oklahoma, Missouri, Tennessee, Alabama, Louisiana and Ohio.
The U.S. Supreme Court will rule in the coming months on whether to uphold Mississippi’s 15-week abortion ban, which could roll back abortion rights nationwide and let states openly restrict abortion even before the fetus is viable. That would mean states could ban abortion outright under federal law without needing lawsuit provisions like SB 8 and SB 1309.
Tracking new action on abortion legislation across the states (Washington Post)