The slow impending death of Roe v. Wade at the hands of the Supreme Court has encouraged red states to experiment with different approaches to tormenting abortion patients. In the months since it became clear that the court planned to let Roe die this summer, states have playfully experimented with nullifying its protections.Texas kicked things off with S.B. 8 last summer, allowing random vigilantes to sue abortion providers and their “abettors” for a $10,000 bounty. Lawmakers in at least 12 other states have since proposed versions of copycat abortion bans—most of which make up for what they lack in constitutionality in sloppy drafting and cruelty.
For instance, Missouri Republicans have introduced bills that would prohibit residents from traveling out of state to terminate a pregnancy and force women to carry ectopic pregnancies that could kill them. Alabama is vigorously defending a law that allows district attorneys to cross-examine minors seeking an abortion without parental consent—and allows judges to appoint a guardian to represent the fetus in court. (The law seemed dead until January, when a conservative appeals court, emboldened by SCOTUS, took steps to revive it.) Not to be outdone, Idaho has taken a slightly different approach: On Monday, its Legislature passed a bill that effectively allows the father, siblings, grandparents, aunts, and uncles of a “preborn child” to veto an abortion. The law applies not just to minors, but to any adult seeking the procedure.
That bill, S.B. 1309, now headed to Republican Gov. Brad Little’s desk for his signature, constitutes an explicit effort to afford the biological relatives of a “preborn” fetus more rights than the person carrying it. Like Texas’ S.B. 8, the Idaho measure bans abortion when a heartbeat can be detected after six weeks, before most people know they’re pregnant. (Protesters wanted it to be triggered at fertilization, believing six weeks was too late, but they did not prevail.) Like S.B. 8, the Idaho law grants private citizens, rather than the state, the power to enforce it, so no state actor can be sued, and therefore no legal mechanism exists to challenge it in federal court. The Supreme Court blessed this workaround in December, holding that the federal judiciary cannot block an unconstitutional law that relies on private enforcement, and the Texas Supreme Court ratified it last week.
But unlike S.B. 8, the Idaho bill does not let just any random stranger sue clinics, physicians, or those who aid or abet them. Rather, it limits the pool of plaintiffs to the fetus’s family members. That includes patients, who can sue their own abortion providers up to four years after the procedure. And unlike S.B. 8, the damages start at $20,000. (As was the case in Texas, if the plaintiff wins, they collect attorneys’ fees from the defendant; whereas if the defendant prevails, they get nothing.)
It seems safe to assume that a person who voluntarily terminates a pregnancy will probably not sue their doctor for providing the requested medical care. (Someone who later regrets their decision might try it, but the overwhelming majority of patients do not regret their abortions.) So, the obvious object of the Idaho bill is to permit a third party—in most cases, likely the father or anyone in his family—to force the patient to carry an unwanted pregnancy.
The Idaho law has an exception for rape, but only if the victim files a police report. This exception is cold comfort given that few victims of sexual assault report the crime to the police, in part because filing a report could result in further abuse, especially for victims of intimate partner violence. If a rape victim terminates her pregnancy without filing a police report, the rapist’s family members can all sue and collect separately. The bill’s sponsor, Republican state Rep. Steven Harris, has confirmed that if a rapist has 10 siblings, each can sue for $20,000. The bill therefore makes it incredibly easy for a sexual assailant’s family to further victimize the woman by profiting from her pregnancy.
The law also contains a theoretical exception for medical emergencies, but the burden falls on the provider to prove that the abortion was medically necessary. Even then, the procedure is only deemed legal when it is necessary to avert death or “substantial and irreversible impairment of a major bodily function.”
Gov. Brad Little has indicated that he will sign S.B. 1309 soon. Once he does, Idaho’s five abortion facilities may well close their doors, since the threat of ruinous lawsuits could render their work untenable. And that, of course, is the end goal. As has been the case in Texas since September, the object is to save the “preborn” fetus at any cost to the pregnant person, and to do so by chilling providers and those who need services from taking any action at all. Knowing that the Supreme Court has permitted that end run around Roe and Casey, Idaho goes one further in assuring that pregnant victims of intimate partner violence will be subject to the whims of their abusers. The putative police report isn’t the state protecting the victim’s interest but the state incentivizing and rewarding abusers and their families.
These copycat bills will proliferate regardless of what happens to Roe this summer; Tennessee Republicans are rapidly advancing one at this moment. It is worth dwelling on the cruel and cynical route that GOP legislators took to get there. Only a few short years after states claimed they only sought more ultrasound laws, more mandatory medical warnings read by unwilling physicians, longer waiting periods, and more burdensome requirements for clinics, the fiction that states just wanted to help women make better informed decisions for their unborn babies gave way to the proliferation of this odious legislation the moment Brett Kavanaugh was confirmed to replace Anthony Kennedy.
This fiction—that terminating pregnancies should only be permitted when maternal interests are carefully balanced against those of the fetus—is now revealed as a tactic to shutter clinics and nothing more. The new tactic, which simply bars any procedure after six weeks and converts pregnant people into unwilling incubators, is yet more evidence (if we still needed any) that years of professed solicitude for maternal autonomy and decisional freedom was always a sham. Gone is the talk of pregnant people making decisions coerced by nefarious “abortion mills.” The only option now available is state-coerced pregnancy and delivery.
There is a progression here, but it’s subtle. Texas made sure that people seeking to terminate a pregnancy would be at constant threat from their own communities; the state has invited Lyft drivers, high school counselors, and neighbors to police private decisions that should be left to the mother and her physician. What Idaho has done is even more ruthless and vindictive. The state now invites family, including intimate partners’ extended family, into the home to coerce and pressure her. Texas weaponized community to diminish autonomous decision-making. Idaho plans to weaponize family.
In Planned Parenthood v. Casey, decided in 1992, the Supreme Court upheld a host of new Pennsylvania burdens on abortion but drew a firm line against mandatory spousal consent; a provision then-appellate Judge Sam Alito would have permitted. The famous plurality opinion that was a compromise between Justices Sandra Day O’Connor, David Souter, and Anthony Kennedy cited copious trial testimony about the prevalence and danger of domestic violence. Pennsylvania’s spousal notification requirement had exempted wives who’d been raped by their husbands, but not those who’d been coerced into “sexual behavior other than penetration,” the opinion noted:
In well-functioning marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion. Many may have justifiable fears of physical abuse, but may be no less fearful of the consequences of reporting prior abuse to the Commonwealth of Pennsylvania. Many may have a reasonable fear that notifying their husbands will provoke further instances of child abuse; these women are not exempt from [Pennsylvania’s] notification requirement. Many may fear devastating forms of psychological abuse from their husbands, including verbal harassment, threats of future violence, the destruction of possessions, physical confinement to the home, the withdrawal of financial support, or the disclosure of the abortion to family and friends.
The dissenters in Casey—Chief Justice William Rehnquist joined by Justices Antonin Scalia, Clarence Thomas, and Byron White—all disagreed, lifting up “a husband’s interests in procreation within marriage and in the potential life of his unborn child.” Idaho has not only nullified Casey’s protections for abuse victims, even before the Supreme Court has pronounced Casey dead. It’s also empowered the families of those denied a veto in Casey cash prizes for exercising that veto. The state’s thumb is not just on the scale for fathers and their relatives and the “preborn”; there is just no scale anymore. There will be more babies, yes, and more maternal violence and more maternal suicide and more poverty, yes. But now the state won’t just mandate those outcomes with the threat of imprisonment. It will offer cash bounties to the individuals who help make them happen.
