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June 24, 2021

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Idaho’s ‘heartbeat’ abortion ban relies on nationwide wave of anti-abortion laws eyeing Supreme Court

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WASHINGTON — On Tuesday, Idaho Gov. Brad Little signed into law a bill that would ban abortions once a fetal heartbeat can be detected, outlawing virtually all abortions in the state, with an important caveat: It won’t actually go into effect unless a nationwide push by anti-abortion groups reaches the Supreme Court.

The Idaho law was signed amid an unprecedented wave of anti-abortion legislation in GOP-controlled state legislatures across the country. Just last week, 28 new restrictions were passed in seven states, making a total of 61 laws restricting abortion enacted so far this year, according to the Guttmacher Institute, an abortion rights research organization.

“Idaho is a state that values the most innocent of all lives — the lives of babies,” the Republican governor said in a statement. “We should never relent in our efforts to protect the lives of the preborn.”

So-called “heartbeat bills” have passed in several states, starting with North Dakota in 2013, but they have repeatedly been struck down by courts based on the precedent set by the Supreme Court’s 1973 ruling in Roe v. Wade, which established a right to abortion. In subsequent cases, the court has held that states cannot restrict abortion before fetal viability, about 24 to 28 weeks into pregnancy.

A “trigger” provision in the Idaho law means it won’t go into effect unless a federal appeals court upholds a similar law in another state. In the federal court system, rulings at the district court level can be appealed to a federal appellate court, whose decisions can in turn be appealed to the Supreme Court, but the nation’s highest court agrees to hear just a fraction of the thousands of cases brought to it each year.

In 2016, the Supreme Court let stand lower court rulings that found the North Dakota law and a similar law in Arkansas to be unconstitutional, but proponents of the “heartbeat” bills are hoping for a different outcome with the high court’s current 6-3 conservative majority.

Elizabeth Nash, a state policy analyst at the Guttmacher Institute, said the inclusion of the “trigger” language “could be a recognition of the current status of abortion, but it could also be an avoidance of a court case and spending state money.”

If Idaho’s law goes into effect, it would punish someone who performs an abortion with up to five years in prison if the embryo shows cardiac activity, which can be detected with a transvaginal ultrasound after as little as six weeks, before many people know they are pregnant. The law makes exceptions for medical emergencies or cases of rape or incest.

“This is an abortion ban in waiting,” Nash said. “It’s waiting for the day when abortion rights have been undermined.”

Critics say calling the legislation a “heartbeat bill” is misleading, since the first cardiac activity occurs in tissue called the fetal pole of an embryo, which does not have a heart at six weeks of gestation.

“There’s just real danger in calling this a ‘fetal heartbeat bill,’ when it really is a six-week abortion ban,” said Paul Dillon, vice president of public affairs at Planned Parenthood of Greater Washington and North Idaho.

While Dillon emphasized the Idaho law has not gone into effect, he said its passage contributes to the stigma around abortion and creates confusion and uncertainty. If it does go into effect, he said, it could disproportionately impact people with fewer resources.

“The cost is high for people who don’t have the means, or access to a car, or time off work, or lodging,” Dillon said. “We really believe at Planned Parenthood that all people — regardless of their income, their job or their zip code — should be able to access abortion care.”

Mistie DelliCarpini-Tolman, Idaho state director for Planned Parenthood’s advocacy arm, warned when the legislature passed the bill April 16 that her organization would challenge it in court.

“Health care decisions should be made between a patient and their provider — without government interference,” DelliCarpini-Tolman said. “Let’s be clear: This bill is unconstitutional, and should it become law, there will be a lawsuit filed to stop its enactment.”

Not all anti-abortion groups have thrown their weight behind the wave of “heartbeat” bills, which have so far passed in 13 states but have consistently been blocked by courts. Other, less restrictive abortion-related cases that may have better odds of prompting the justices to undermine or overturn Roe v. Wade are currently working their way to the Supreme Court.

“We understand why lawmakers want to have this type of law on the books in the event that authority is delegated back to the states to make these decisions,” said Katie Glenn, government affairs counsel at Americans United for Life, an advocacy group that works to enact anti-abortion laws at the state and federal level.

“But there are 45 federal cases in the queue winding up to the Supreme Court. It’s pretty clear that none of these laws will go into effect until the Supreme Court weighs in, and so with the limited resources and time we have, we really want to focus on defensible legislation that can go into effect right now.”

As an example of a law with an immediate effect, Glenn pointed to another Idaho bill signed into law by Little on April 20 that aims to dissuade women from terminating pregnancy when a fetus is diagnosed with Down syndrome. Roughly two-thirds of fetal Down syndrome diagnoses in the United States result in abortion.

Glenn said her organization generally has not worked on “heartbeat” laws, but she understands the effectiveness of the language. “It’s something that anybody can understand,” she said. “We all have a heartbeat.”

The odds of the Idaho law going into effect are unclear. Nash said while federal district courts typically adhere to Supreme Court precedent, some appellate court judges have recently shown a willingness to defy precedent. While Idaho is in the jurisdiction of the relatively liberal 9th Circuit Court of Appeals, other abortion restrictions are being challenged in the more conservative 5th and 6th circuits.

The Supreme Court could undermine the abortion protections established in Roe v. Wade and subsequent decisions without overturning the 1973 ruling altogether, and a spate of conservative justices appointed under former President Donald Trump make it more likely cases will reach the high court.

Chief Justice John Roberts, when he voted with the court’s liberal justices in 2020 to strike down a Louisiana abortion law, signaled he was open to reconsidering other abortion protections.

“The court is seeking abortion cases — that was pretty clear from Roberts’ opinion in the Louisiana decision,” Nash said. “It seems that the court is not ready to take on a gestational age ban just yet. That’s why I think the court would be looking to take a case or two on other types of restrictions before they jump into a more comprehensive ban.”

Glenn said states like Idaho are enacting more restrictive abortion laws in anticipation of changes at the Supreme Court, because the Roe v. Wade decision centralized authority on the issue away from the states and toward the high court.

“You’re seeing judges force the Supreme Court’s hand a little bit,” she said, “by pushing these cases up and saying, ‘This is unresolved. This is an area of law where we aren’t sure what to do.’ And the reason for that is because the Supreme Court grabbed all the authority in 1973 and has been doling out little pieces of wisdom.”

“With that level of confusion, a lot of lawmakers are saying, ‘We’re just going to pass the laws that we want on the books, and they will be there whenever we get authority back.’ That seems to be the thinking behind a lot of laws that have that trigger provision.”

If the laws do go into effect, Nash said, the impact on Idaho could be significant.

“Right now, there’s no ban in effect,” Nash said, “but there’s the potential — given the makeup of the courts, given the direction of these state legislatures — that access could be even more limited. And for a place like Idaho where access isn’t always available, that’s a real concern.”

Planned Parenthood of Greater Washington and North Idaho has clinics in Spokane, Pullman and Spokane Valley, but none in North Idaho.

Nationwide polls, including one by Gallup and another by NPR/PBS NewsHour/Marist in 2019, show more than three-quarters of Americans want abortion to remain legal, but a majority also supports some restrictions on when it can be performed. For now, abortion remains legal in all 50 states.

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