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Despite reservations, Idaho Gov. Brad Little signs anti-abortion bills into law

Screenshot from Idaho Public Television
Idaho Gov. Brad Little (FILE PHOTO)

Hours before a Wednesday deadline, Idaho Governor Brad Little signed into law two measures that open the door to civil lawsuits based on the state’s abortion restrictions. But he did so with significant doubts about the legality and propriety of one bill.

Senate Bill 1309 allows the family members of a woman, or those of the man who impregnated her, to sue doctors who perform abortions after initial embryonic cardiac activity can be detected – which can be as early as six weeks into a pregnancy, using sensitive equipment. That’s more than two weeks before the embryo is considered a fetus. Opponents of 1309 have also pointed out that the six-week mark comes before many women know they’re pregnant.

The law assures plaintiffs at least $20,000 in damages. The window to file lawsuits would remain open up to four years after a procedure. Senate Bill 1358 established some legal details, such as attorney’s fees.

The 1309 measure passed both chambers of the Idaho Legislature by more than a two-thirds majority. Idaho Deputy Attorney General Brian Kane said in February that it would likely be found unconstitutional. But as debate unfolded in House and Senate hearings, Little remained quiet on the controversial measure. A spokeswoman told reporters last week he would not comment on pending legislation. Upon signing 1309 and 1358 into law, Little expressed doubts about the package.

“I stand in solidarity with all Idahoans who seek to protect the lives of preborn babies,” Little wrote in a letter to Janice McGeachin, President of the Idaho Senate. “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.”

Little pondered the unintended consequences of 1309’s approach. He said deputizing private citizens to punish abortion providers could be used as a template for other states whose majority values are markedly different from Idaho’s.

“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 wrote.

Little also pointed out a loophole in the legislation. While it contains exceptions for abortions performed as a result of rape or incest, 1309 does not acknowledge possible delays in filing and obtaining police reports that would prove an excepted situation. Such delays, Little wrote, would “render the exception meaningless for many.”

Additionally, the fact that the bill allows family members of the impregnator to launch suits “risks re-traumatizing victims by affording monetary incentives to wrongdoers and families of rapists,” Little wrote.

Little’s message concluded by noting that he remains “committed to protecting the lives of preborn babies” and urging lawmakers to address his concerns and fix the legislation.

S1309 is related to a 2021 Idaho law that criminalizes abortion after detection of fetal cardiac activity. That law is currently in abeyance as federal courts weigh challenges to the landmark 1973 Roe v. Wade decision, which legalized abortion across the country. But 1309 is set to take effect 30 days after Little’s signing, April 22.

Until then, Planned Parenthoodnoted its Idaho clinics remain open. Planned Parenthood operates three clinics in Idaho, one each in Boise, Meridian and Twin Falls.

Brandon Hollingsworth is your All Things Considered host. He has served public radio audiences for fifteen years, primarily in reporting, hosting and interviewing. His previous ports-of-call were WUOT-FM in Knoxville, Tennessee, and Alabama Public Radio. His work has been heard nationally on Morning Edition, All Things Considered, Here and Now and NPR’s top-of-the-hour newscasts.