Idaho Enacts Law Copying Texas’ Abortion Ban — And These States Might Be Next

Topline

Idaho Gov. Brad Little (R) signed into law Wednesday a near-total ban on abortion that mimics Texas’ abortion law by empowering private citizens to enforce the ban through lawsuits, making Idaho the first in a potential string of states that may copy Texas’ abortion restrictions—or go even further—after courts refused to strike the law down.

Abortion rights activists at Freedom Plaza for a pre-march rally before the annual Womens March … [+] October 2, 2021 in Washington, DC.

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Key Facts

Oklahoma will likely be next, after the state Senate and House passed two separate bills similar to Texas’ Senate Bill 8 (SB 8): One of them bans nearly all abortions after approximately six weeks into a pregnancy like the Texas ban, and the House-passed bill bans all abortions even before six weeks.

Missouri’s legislature has a bill in committee mimicking the Texas law—and a proposed amendment attached to several bills would go even further, allowing civil lawsuits to punish those who help someone obtain an out-of-state abortion.

Tennessee lawmakers are considering a bill in committee that includes an amendment that copies the Texas law—but it bans all abortions, not just those after six weeks.

Bills are also pending in Alabama, Louisiana and Ohio, with Ohio’s bill prohibiting all abortions, even before six weeks.

Legislation in Arizona, Florida, Minnesota and Wisconsin has been introduced but is unlikely to succeed: Florida passed a 15-week abortion ban instead and Arizona is likely to follow suit, while Minnesota and Wisconsin have Democratic governors who would veto any bill that gets passed.

Efforts to pass a Texas-style ban in Arkansas have already failed twice—though lawmakers could try again—and Republicans on a South Dakota House committee objected to a bill brought by Gov. Kirsti Noem (R).

Key Background

The Idaho House passed the copycat abortion bill—which, like SB 8, bans nearly all abortions after approximately six weeks—in a 51-14 vote in mid-March, after the Idaho Senate passed it in early March. The bill stipulates family members of the fetus can sue an abortion provider for performing the procedure and receive at least $20,000 in damages. Texas’ abortion ban took effect September 1 as the most restrictive abortion law in the country, and it was designed to be more difficult to strike down in court than other abortion restrictions. The law empowers any private citizen to sue anyone who “aids and abets” an abortion and receive at least $10,000 in damages, tasking them with enforcing the law instead of state officials. That was crafted so that it would be harder to name state officials as defendants who can be blocked from enforcing the law—a plan that has so far panned out, as a federal appeals court, the U.S. Supreme Court and the Texas Supreme Court have all now ruled in favor of Texas and allowed the law to stand.

What To Watch For

Unless a court strikes the Idaho law down, the abortion ban will take effect in 30 days.

Chief Critic

“This development is devastating for women in Idaho, as it will further impede women’s access to health care, especially those on low incomes and living in rural communities,” White House Press Secretary Jen Psaki said in a statement Wednesday.

What We Don’t Know

Whether the copycat laws will hold up in court. While the U.S. Supreme Court’s upholding of the Texas law doesn’t bode well for those challenging other states’ legislation, lower courts could be more receptive to lawsuits. The 5th Circuit Court of Appeals and Texas Supreme Court, which both upheld the law, are predominantly or entirely made up of conservative judges more likely to back abortion restrictions. Other state and federal courts may have judges that would be more inclined to strike the copycat laws down.

Tangent

Beyond the abortion copycat bills, states are also drawing on SB 8’s lawsuit provision for other political issues and introducing legislation that’s similarly enforced through private suits instead of state officials. The Washington Post reported in February at least 35 state bills have been introduced with a similar enforcement mechanism—on both sides of the aisle—including a bill to regulate the firearms industry in California and legislation covering such issues as school curriculums, Covid-19 policies and bans on transgender student athletes.