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

WASHINGTON — On Tuesday, Idaho Governor Brad Little signed into law a bill banning abortions once a fetal heartbeat can be detected, banning virtually all abortions in the state, with a Important guard: It will only go into effect if a nationwide push by anti-abortion groups reaches the Supreme Court.

the Idaho Law was signed into law 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, bringing the total to 61 abortion-restricting laws passed so far this year. according to the Guttmacher Institutean 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 relax our efforts to protect the lives of unborn children.”

So-called “heartbeat bills” have been passed in several states, starting with North Dakota in 2013, but have been repeatedly struck down by courts based on precedent set by the 1973 Supreme Court decision in Roe v. Wade, who established a right to abortion. In later cases, the court has ruled that states cannot restrict abortion before fetal viability, around 24 to 28 weeks gestation.

A “trigger” provision in Idaho law means it will only go into effect if a federal appeals court upholds similar law in another state. In the federal court system, decisions at the district court level can be appealed to a federal appeals court, whose decisions can in turn be appealed to the Supreme Court. , but the nation’s highest court agrees to hear only a fraction of the thousands of cases brought to it each year.

In 2016, the Supreme Court overturned lower court rulings that found north dakota law and a similar law in Arkansas be unconstitutional, but supporters of the ‘heartbeat’ bills are hoping for a different outcome with the current 6-3 Tory majority in the High Court.

Elizabeth Nash, a state policy analyst at the Guttmacher Institute, said the inclusion of ‘trigger’ language “could be an acknowledgment of the current state of abortion, but it could also be a way to avoid legal action and spend state money”.

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

“It’s a pending abortion ban,” Nash said. “He is waiting for the day when the right to abortion will be flouted.”

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

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

Although Dillon pointed out that the Idaho law did not go into effect, he said its passage contributed to the stigma surrounding abortion and created confusion and uncertainty. If this goes into effect, he said, it could have a disproportionate impact on people with fewer resources.

“The cost is high for people who can’t afford it, or access to a car, or free time, or housing,” Dillon said. “We truly believe at Planned Parenthood that all people – regardless of income, job, or zip code – should be able to access abortion care.”

Mistie DelliCarpini-Tolman, Idaho State Director for the Advocacy Arm of Planned Parenthood, warned when lawmakers passed the bill on April 16 that his 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 if it becomes law, legal action will be taken to prevent its enactment.”

Not all anti-abortion groups have weighed in behind the wave of “heartbeat” bills, which have so far passed in 13 states but have always been blocked by the courts. Other less restrictive abortion-related cases that may have a better chance of prompting judges to undermine or overturn Roe v. Wade are currently pending before the Supreme Court.

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

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

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

Glenn said her organization hasn’t typically worked on “heartbeat” laws, but she understands the power of language. “It’s something anyone can relate to,” she says. “We all have a heartbeat.”

The odds of the Idaho law going into effect are unclear. Nash said that while federal district courts generally adhere to Supreme Court precedent, some appeals court judges have recently shown a willingness to challenge precedent. While Idaho falls under the jurisdiction of the relatively liberal 9th ​​Circuit Court of Appeals, other abortion restrictions are challenged in the more conservative 5th and 6th Circuits.

Supreme Court Could Undermine Abortion Protections Established in Roe v. Wade and subsequent rulings without completely overturning the 1973 ruling, and a wave of conservative justices appointed under former President Donald Trump makes it more likely that 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 lawsignaled that he was willing to reconsider other abortion protections.

“The court is looking for abortion cases — that was pretty clear from Roberts’ opinion in the Louisiana decision,” Nash said. “It looks like the court isn’t ready to ban gestational age just yet. That’s why I think the court would look to take a case or two on other kinds of restrictions before embarking on a more comprehensive ban. .

Glenn said states like Idaho are enacting more restrictive abortion laws in anticipation of Supreme Court changes, as Roe v. Wade centralized authority on the matter away from the States and towards the High Court.

“You see judges forcing the hand of the Supreme Court a bit,” she said, “by pushing these cases aside and saying, ‘It’s not resolved. This is an area of ​​law where we don’t know what to do. And the reason is that the Supreme Court seized all the authority in 1973 and handed out little bits of wisdom.

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

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

“At this time, there is no ban in effect,” Nash said, “but it is possible — given the makeup of the courts, given the leadership of these state legislatures — that the access is even more limited. And for a place like Idaho where access is not always available, this is a real problem.

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

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