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In Attempt to Be Like Texas, Idaho Faces Unique Opportunity with Heartbeat Law
Mary Elizabeth Castle, J.D. | 24 April 2022
The success of the lifesaving Texas Heartbeat Law has inspired many states to follow suit and pursue their own legislation that outlaws abortion at the detection of a baby’s heartbeat by giving private citizens the power to enforce that law. To date, there are several states that are considering passing heartbeat laws like the Texas law. Idaho became the first state to pass and test the Texas-style bill for itself when Governor Brad Little signed a heartbeat law similar to the law in Texas, on March 23 of this year. As expected, abortion group Planned Parenthood filed a lawsuit against the law. However, the Idaho Heartbeat Law was set on a different legal path than the Texas Heartbeat Law. Planned Parenthood submitted its plea to the Idaho Supreme Court where it found success in getting the law temporarily blocked, instead of asking for an emergency ruling from the U.S. Supreme Court, like it did (and lost) in the case of the Texas Heartbeat Law. The average observer may find this shocking considering the Texas Heartbeat Law had success at both the U.S. Supreme Court and the Texas Supreme Court. Nevertheless, if one observes the court structure of Idaho, the doubt from some top Idaho leaders, and unique laws in Idaho it is possible to understand why the Idaho Fetal Heartbeat Law is facing different challenges.
First, it should be noted that the Idaho Heartbeat Law is following a different legal paper trail than the Texas Heartbeat Law. Before the Texas Heartbeat Law went into effect, abortionists immediately appealed to the U.S. Supreme Court for an emergency ruling to stop the law from going into effect. The Supreme Court denied the request for emergency relief, which allowed the Texas Heartbeat Law to go into effect on September 1, 2021. Concurrently, there were lawsuits in the federal district court that would later be appealed to the 5th Circuit Court of Appeals and the rest is history. However, Planned Parenthood took a different approach in Idaho by making a plea directly to the state’s supreme court. It’s notable that Planned Parenthood did not ask SCOTUS for emergency relief again and; however, it is interesting that there was not even a case filed in the one federal court in Idaho. As opposed to the abortionists in Texas who had the opportunity to forum shop for abortion-favoring Judge Pitman in the federal court of the Western District of Texas, abortionists in Idaho would have only had a few judges to present their case in the one district court of Idaho. Thus, Planned Parenthood may have thought it a better strategic move to take the lawsuit all the way to the Idaho Supreme Court. Although justices in the Idaho Supreme Court are elected in nonpartisan elections, four of the five justices were appointed by a Republican governor. Despite this alleged conservative makeup of the Idaho Supreme Court, the highest court in Idaho still granted an injunction on the Heartbeat Law. However, the complicated politics of the state may reveal why having all but on justice be appointed by a Republican governor is irrelevant.
Secondly, the message from some top Idaho elected officials was neither unified nor supportive of the Idaho Heartbeat Law. It is often helpful when trying to pass legislation to have the support of top elected officials in order to get momentum to get a bill passed and signed into law. Further support is even helpful after the bill has been signed. Texas Governor Greg Abbott showed tremendous support for the Texas Heartbeat Law with a videotaped bill signing with a large group of legislators and supporters behind him, including the Texas Lieutenant Governor Dan Patrick. Similarly, Texas Attorney General Paxton is noted for speaking favorably of the law as he had to defend it at the Supreme Court once as both a defendant and arguing for the state in the Biden administration’s lawsuit. But in Idaho, despite having both a Republican governor and attorney general, two of the most prominent elected officials in the state expressed doubt and discontent with in the Idaho Heartbeat Law. While signing the bill with one hand, Idaho Governor Little wrote with the other that, “while [he] support[s] the pro-life policy in this legislation, [he] fear[s] the novel civil enforcement mechanism will in short be proven both unconstitutional and unwise. While some prolife politicians may express uneasiness with the novelty of the civil enforcement mechanism of the Texas Heartbeat Law, Governor Little’s comments that abortion is a “judicially recognized constitutional right” are concerning and could mean bad news for any other prolife law that is proposed in the Idaho legislature.
There should be no doubt in the strength of the Texas Heartbeat Law. The U.S. Supreme Court reviewed the law on three separate occasions and three times the Texas Heartbeat Law prevailed. That is about as strong of a legal position you’re going to get!
If having a doubtful governor was not bad enough, the top office holder who would normally defend the state’s position at the Supreme Court level, the state’s attorney general, issued an opinion in February stating the Idaho Heartbeat Law is likely to be held unconstitutional. In the 9-page opinion, Chief Deputy Attorney General Brian Kane also asserted that the heartbeat bill proposed at the time would likely be found unconstitutional. Kane boldly and incorrectly asserted that the current SCOTUS jurisprudence allows for a “woman’s right to obtain a pre-viability abortion”. Kane alleges that the law violates the Due Process Clause by treating “abortion doctors” differently and creating an excessive penalty with the $20,000 that would be awarded in a civil suit. The Idaho AG’s office arguments are not original; this is just the first time they have been made by a state official that people would expect to be pro-life. Nevertheless, Idaho lawmakers refuse to stand down and have been granted by the Idaho Supreme Court the right to intervene in the Planned Parenthood lawsuit, which will be necessary considering that the governor and attorney general have asserted legal opinions contrary to the interest of the legislature.
Lastly, the Idaho Supreme Court will have to be the judge on whether the claims that the heartbeat law violates the Idaho Constitution are valid. According to Planned Parenthood’s petition, the Idaho constitution may present barriers to the enactment of the Heartbeat law. No such claims were brought by Planned Parenthood and abortionists in Texas and Texas does not appear to have these same provisions in the state constitution. For example, the Idaho Constitution prohibits “special” laws. We all agree the heartbeat law is special, but it will be up to the Idaho Supreme Court to determine what a “special” law is and whether the heartbeat law can be prohibited under this provision. Other Idaho constitutional provisions mentioned in Planned Parenthood’s lawsuit include the right to informational privacy and the fundamental right to privacy in making familial decisions. These provisions are unique because they are not generally stated privacy laws, but specifically address privacy when it comes to medical issues. It will be interesting to see how the Idaho Supreme Court will address these provisions in their state constitution.
Overall, there is still hope that more versions of the model Texas Heartbeat Law can be successful across the country. Although, it is unfortunate that the first attempt at emulating the Texas Heartbeat Law has been met with unique political and legal challenges in Idaho. Since the Texas Heartbeat Law went into effect, approximately 34,000 Texan babies’ lives’ have been saved. Hopefully, Idaho’s heartbeat law will find success in the state supreme court and other states will consider passing prolife legislation like the Texas Heartbeat Law.
 States planning to pass Heartbeat laws with civil enforcement: Arkansas, Florida, Kentucky, Louisiana, Ohio, Oklahoma, South Carolina, and South Dakota
 Note: The Idaho Heartbeat Law is different than the Texas law as it only allows potential father, grandparents, siblings, aunts, and uncles to sue for an amount of $20,000. The Texas law allows any citizen to sue abortionists for $10,000.
 Idaho Attorney General Opinion (February 2022) , file://tv-se12/Folder%20Redirection/mcastle/Desktop/ideas%20for%20Session%202021/Idaho%20AG%20opinion%20on%20heartbeat.pdf
 Id. at 2-5
 Keith Riddler, Idaho Lawmakers Intervene in Lawsuit Against Abortion Ban, Associated Press, (April 20, 2022) https://apnews.com/article/health-lawsuits-legislature-idaho-planned-parenthood-955158bf632aaa776d356b0f0baf393b
 Planned Parenthood v. Idaho, No. 49615, 2022 (Idaho March 30, 2022).
 Planned Parenthood v Idaho at 3.
 Count of babies’ lives saved from texasheartbeatlaw.com
Mary Elizabeth Castle, J.D.
Senior Policy Advisor