Idaho adopts six-week abortion ban with controversial 'private enforcement mechanism'

Idaho has become the second state to enact controversial legislation that would allow private citizens to bring lawsuits against medical professionals who perform an abortion after six weeks of pregnancy — killing an unborn baby who has developed a heartbeat.

Republican Gov. Brad Little signed Senate Bill 1309 into law last week, strengthening a fetal heartbeat law passed by the legislature in 2021, although he raised several concerns about the viability of the law while doing so.

“While I support the pro-life policy in this legislation, I fear the novel civil enforcement mechanism will in short order be proven both unconstitutional and unwise," the governor wrote in a transmittal letter when he signed the bill, the Idaho Capital Sun reported.

Senate Bill 1309 amends the state's fetal heartbeat law, which effectively bans abortions after about six weeks of pregnancy, with a "private enforcement mechanism" modeled after similar Texas legislation. The law permits citizens of Idaho to bring civil lawsuits against medical professionals who kill an unborn baby that has developed a heartbeat.

If a lawsuit is successful, the mother, father, grandparents, siblings, aunt, or uncle of the aborted baby who brought the suit may be awarded at least $20,000.

Pro-life activists hailed Little's signature as a "historic" victory for their cause.

“Today marks a historic day for the State of Idaho, which has now taken an unprecedented step in reversing five decades of bad policy,” Blaine Conzatti, director of the Idaho Family Policy Center, a social-conservative group, said. “I promise that we will keep fighting until every preborn child is valued and protected by law, no matter the stage of development.”

The Texas law is currently being challenged in federal court. Opponents argue that a six-week abortion ban is unconstitutional and that the private enforcement mechanism is an unlawful means of attempting to circumvent review by the courts.

“[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 [of the law]. Should a court adjudicate a challenge to the law on the merits of the restriction on abortions, it would likely be found unconstitutional,” Idaho Deputy Attorney General Brian Kane said in an opinion on the bill.

Though he signed the bill, Little shared some of these criticisms.

"Deputizing private citizens to levy hefty monetary fines on the exercise of a disfavored but judicially recognized constitutional right for the purpose of evading court review undermines our constitutional form of government and weakens our collective liberties,” Little said. "None of the rights we treasure are off limits. How long before California, New York, and other states hostile to the First and Second Amendments use the same method to target our religious freedoms and right to bear arms?”

The governor also raised concerns about how victims of sexual assault will be impacted by the law, writing that exceptions for rape and incest victims are undermined by other parts of the law.

“The challenges and delays inherent in obtaining the requisite police report render the exception meaningless for many. I am particularly concerned for those vulnerable women and children who lack the capacity or familial support to report incest and sexual assault,” Little wrote. “Ultimately, this legislation risks re-traumatizing victims by affording monetary incentives to wrongdoers and family members of rapists.”

Little said that he is committed to the pro-life cause, but urged lawmakers to "promptly rectify any unintended consequences with this legislation to ensure the state sufficiently protects the interests of victims of sexual assault."