Idaho Senate will consider Texas-inspired bill to allow family members to sue abortion providers

Darin Oswald, Idaho Statesman
BOISE (Idaho Statesman) — Despite concerns about its legal merits, an Idaho Senate panel on Wednesday gave the green light to a bill modeled after a recent Texas law that allowed people to sue abortion providers for procedures after about six weeks of pregnancy.
Legal-abortion advocates said Senate Bill 1309 would encourage people to spy on their family members and harass abortion providers, and the Idaho attorney general’s office said it may be unconstitutional for a number of reasons.
Around five or six weeks is generally when an ultrasound can pick up what lawmakers call a “fetal heartbeat,” though specialized physicians have said the sounds are more accurately described as electrical activity.
The Idaho proposal, sponsored by the Idaho Family Policy Center, would allow family members to sue abortion providers for damages if they perform an abortion after a “fetal heartbeat” has been detected — before many women know they’re pregnant.
“We are saying that, right now, with this law, we’re going to protect babies with beating hearts,” said Blaine Conzatti, president of the Idaho Family Policy Center.
Last year, Texas passed a law that outlawed abortions after six weeks and granted private parties the ability to sue abortion providers or anyone else they suspect is “aiding and abetting” abortions after the six-week period. So far, the law has survived multiple court challenges.
The Idaho proposal differs from the Texas law. Only family members of the patient would be allowed to file a lawsuit, and a complaint could not be filed against someone else — such as a patient’s friend — who aids or abets an abortion.
Idaho’s 2021 ”fetal heartbeat” law prohibited abortions after five or six weeks of pregnancy, except in medical emergencies or in cases of rape or incest. That bill, and SB 1309, have trigger clauses so they only become law if a federal appeals court rules in favor of a similar measure.
The Senate State Affairs Committee last month shot down a draft of SB 1309 after senators said they were concerned it would have contradicted laws related to child welfare, custody and probate. Last week, the committee introduced an amended version.
On Wednesday, the committee on a voice vote sent the bill to the full Senate and recommended that it pass.
STATE ATTORNEY SHARES LEGAL CONCERNS
The Idaho attorney general’s office confirmed some of the legal concerns in an opinion solicited by Sen. Grant Burgoyne, a Boise Democrat.
The opinion from Chief Deputy Attorney General Brian Kane said the bill likely would violate Americans’ constitutional right to an abortion by effectively prohibiting “almost all” pre-viability abortions, Kane wrote. It may also violate the U.S. Constitution’s equal protection clause by treating abortion providers differently than other medical providers who violate other state laws, Kane wrote.
And the bill may unconstitutionally delegate legal enforcement power to private citizens and violate the Idaho Constitution’s separation of powers, Kane wrote.
Burgoyne said Wednesday that it’s “disappointing” that most of the bill’s “technical defects could have been corrected.” The “defect” that cannot be corrected is the fact that the bill would “make abortion in Idaho, at least after six weeks, impossible,” he said.
“If this passes, this Legislature will be passing a bill that is unconstitutional on its face,” Burgoyne said.
TRAILER BILL ADDRESSES DOCTORS’ CONCERNS
A trailer bill that would remove provisions troubling to medical providers is expected to follow the current bill.
Ken McClure, a lobbyist for the Idaho Medical Association, testified Wednesday that the bill as it stands would allow physicians to be sued dozens of times depending on how many people want to bring lawsuits. And plaintiffs are encouraged to bring lawsuits by a minimum $20,000 statutory damage provision, he said.
But if a doctor wins the lawsuit, they have no recourse because the current bill does not allow defendants to collect attorney fees for a frivolous lawsuit, McClure said. The bill also places on the defendant the burden to prove that they complied with the law.
“That’s not the way the system works in any other litigation,” McClure said.
A trailer bill will correct those issues, Conzatti said. It would grant attorney fees to the defendant if they complied with the law. Additionally, the trailer bill would strike the section requiring an affirmative defense, which would instead allow for “normal burdens of proof,” Conzatti said.
Sen. Abby Lee, a Fruitland Republican, asked Conzatti why the current bill shouldn’t be amended, which would eliminate the possibility that the trailer bill won’t pass both legislative chambers.
Conzatti said the trailer bill will pass.
“We have the buy-in from the different aspects of the coalition that need to buy in,” he said. “It seems to be the most simple way to do it.”
ADVOCATES SAY BILL WILL ENCOURAGE ‘VIGILANTES’
Public testimony on Wednesday spanned nearly two hours and included impassioned support and opposition to the bill. Multiple people said they or people they know regretted getting an abortion. Others cited religious objections to abortions at any time after conception.
Following the committee vote, reproductive rights advocates said the bill is unconstitutional and will encourage Idahoans to act as “vigilantes.”
Leaders of Planned Parenthood Alliance Advocates, a nonprofit that advocates for reproductive health rights, said the “dangerous” bill would result in a “near-total ban” on abortions, encourage spying on family members and lead to lawsuits with the goal of “eliminating access to abortion care.”
“Idaho politicians are doing everything they can to bypass our constitutional rights and eliminate abortion access in our state,” Mistie DelliCarpini-Tolman, Idaho state director of Planned Parenthood Alliance Advocates, said in a news release. “Restricting access to essential health care is dangerous, irresponsible and cruel.”
The American Civil Liberties Union of Idaho, a nonprofit law and advocacy group that seeks to defend constitutional rights, also opposes the bill. Policy Strategist Lauren Bramwell said the bill is “blatantly unconstitutional.”
It’s “also designed in such a manner that undermines the separation of powers and could be weaponized by other states to limit the constitutional rights that we all hold dear,” Bramwell said in a news release.
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