A Texas-like heartbeat bill in Idaho

State lawmakers in Idaho on Monday passed a bill that, if enacted, will allow family members to sue an abortionist who kills an unborn baby with a detectable heartbeat.

Idaho’s legislation is the most successful so far out of a barrage of state bills modeled after the Texas Heartbeat Act, which allows any private citizen to sue a person who performs or helps a woman obtain an abortion on a baby with a detectable heartbeat, which usually appears at about six weeks of gestation. Since the Texas law went into effect six months ago, about a dozen states have attempted to pass similar measures.

Most have made little to no progress. Some pro-lifers in those states blame poor timing and a focus on other legislative priorities. But the authors of the Idaho bill made significant deviations from the Texas legislation in hopes of avoiding some of the criticisms of the Texas law. Some pro-lifers wonder if those differences will prevent the Idaho bill from having the same effect.

Blaine Conzatti, the president of the Idaho Family Policy Center, kept an eye on Texas last year. He’d heard of the bill’s novel strategy of avoiding court challenges by forbidding state officials from enforcing the law and instead allowing private citizens to file enforcement lawsuits. Conzatti thought it was a “hare-brained” idea.

But when the Texas law went into effect on Sept. 1, 2020, and “started saving babies,” he admitted it “proved me wrong, proved everyone else wrong.”

Largely because of the private enforcement mechanism, the 5th U.S. Circuit Court of Appeals and the U.S. Supreme Court did not block the Texas legislation despite multiple opportunities. The Texas Supreme Court on Friday dealt the last blow to a suit that abortion providers brought against the law, saying that state officials were not the right defendants in the case because they had no role in enforcing the act. Recent data show the number of abortions in Texas in September and October decreased by 50 percent compared to the same time the previous year (although reports also show a massive increase in Texas women traveling out of state for abortions).

Idaho had already passed a heartbeat bill earlier in 2021, but it included language delaying its effective date until a court upheld a similar law. When the Texas law went into effect in September, Conzatti and other Idaho pro-lifers saw an opportunity to get their stalled measure into place even sooner: Conzatti started drafting similar private enforcement language as an amendment.

“We’ll take any winning strategy that comes along,” he said. After a few false starts earlier this year at the committee stage, Senate Bill 1309 passed in the Senate at the beginning of March and in the House on Monday.

The most successful bill outside of Idaho so far is in Oklahoma, where the Senate on Thursday passed its own version of a privately enforced heartbeat bill. Other states have seen less progress: In Florida, a Texas-style bill died after failing to pick up a Senate sponsor or a House co-sponsor. In South Dakota, Gov. Kristi Noem’s proposed bill never got a hearing. Pro-life private enforcement bills in Alabama, Arizona, Arkansas, Minnesota, Ohio, and West Virginia have met similar fates. In Wisconsin, a Senate committee last month approved a private-enforcement heartbeat bill, but it hasn’t yet appeared on the full Senate calendar. If passed, Democratic Gov. Tony Evers would likely veto it. The future of similar bills in Missouri is unclear.

Lawmakers in some of these states have other priorities. Pro-life groups in Arizona and Florida have focused on passing 15-week protections for the unborn. Other pro-life groups have voiced uncertainty about copying Texas’ legislation. In a March newsletter, President Jerry Cox of the Family Council in Arkansas explained that a Texas-style law wouldn’t be guaranteed success in his state, where different courts and judges would be less likely to uphold it.

He also pointed to the expected ruling from the U.S. Supreme Court in the case Dobbs v. Jackson Women’s Health Organization: “Someone has to sound the alarm and tell Arkansans that it can do a lot more harm than good if we proceed with passing more abortion laws before the U.S. Supreme Court rules this June.”

Back in Idaho, Conzatti credits the success of his state’s heartbeat bill partly to the ways in which it differs from the Texas legislation: Rather than allowing any private citizen to sue a violator of the law, the Idaho bill only allows family members of the aborted child to do so. Also, the bill permits such lawsuits to target only the person who performs the abortion, not anyone who aids or abets the procedure.

Some pro-lifers wonder if those differences will ultimately make the bill less effective than in Texas. Pro-life attorney Paul Linton said in an email that the limited scope of the Idaho bill’s private enforcement mechanism “presents interesting questions as to whether anyone would actually challenge the bill, if enacted, or whether anyone would try to enforce it.”

But Conzatti is confident the bill has enough teeth to be effective. Planned Parenthood Alliance Advocates on Twitter described the bill as a “near-total ban” on abortions that would “create a chilling effect on providers.” Planned Parenthood Action Fund President Alexis McGill Johnson on Monday said Planned Parenthood workers “will continue to provide care in Idaho, and we will continue fighting for our patients and communities.” But the organization added, “Without judicial relief, patients could be looking at the last month of abortion access in Idaho.”

Conzatti is optimistic that Gov. Brad Little, a Republican, will sign the amended heartbeat bill. If and when he does, the measure will take effect 30 days later.