Idaho on Tuesday became the second state this week to enact a so-called heartbeat ban – a law barring most abortions at the onset of a fetal heartbeat, which can occur as early as six weeks into a pregnancy and before many people know they are pregnant.
“We should never relent in our efforts to protect the lives of the preborn,” Republican Idaho Gov. Brad Little said in a statement announcing the bill signing, adding that he was “proud to sign the bill into law today.”
The Idaho bill – which states that it will go into effect only if a federal appeals court upholds another heartbeat ban – comes after a flurry of anti-abortion bills in the early months of the Biden administration, including this week alone. On Monday, Oklahoma enacted a near-total abortion ban and a heartbeat ban. Later that day, Montana banned abortion at 20 weeks based on the scientifically disputed notion that a fetus can feel pain at that point in development.
Idaho’s HB 366 requires that abortion providers check for a fetal heartbeat and would ban abortions if one is detected. It makes exceptions for medical emergencies “to avert (an abortion seeker’s) death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.” It also includes exceptions for rape and incest if it has been reported to a law enforcement agency or child protective services and a copy of the report has been given to the abortion provider.
The states’ bills – which may soon face legal challenges in light of Roe v. Wade, the 1973 landmark Supreme Court decision legalizing abortion nationwide prior to viability – send a sweeping message that the state-level fight over access to the procedure is far from over. Republican-controlled states have advanced a wave of anti-abortion bills this year consistent with the trend under the Trump presidency, while the Biden administration has sought to expand abortion protections, namely by reversing Trump-era restrictions.
Planned Parenthood Votes Northwest and Hawaii slammed Little following the bill signing, accusing him of signing the bill only to appease his “radical followers.”
“Let’s be clear: Abortion is still completely legal in Idaho, even after six weeks. This legislation changes nothing,” the group posted in a statement. “What it really does is simply set Idaho up for a lawsuit if a similar ban in another federal court upholds their unconstitutional legislation – and there is nothing that indicates that would ever happen. But even if it does, we will launch a lawsuit immediately to stop it.”
Idaho state Rep. Steven Harris, who sponsored the bill, told CNN in an interview Tuesday that someone not knowing they were pregnant “shouldn’t change the result.”
“Is there supposed to be a time frame that says, ‘Within some window I can abort the baby?’ ” he said. “It doesn’t quite make sense from a pro-life point of view.”
When asked about the requirements on exceptions for rape or incest, Harris pointed to a previously passed Idaho abortion measure – which would go into effect only if Roe is overturned – with similar requirements for rape and incest victims, saying that “we were careful in those areas to reproduce what was already in current Idaho code as not complicating the idea with other topics.”
Harris said that despite not seeing any court actions moving in the bill’s favor, “the more the courts see that the states feel they have a compelling interest, perhaps the more they’ll rule in our favor – so that’s the hope.”
Prior to this week, South Carolina enacted a heartbeat ban in February and Arkansas legalized a near-total abortion ban in March. Of the 15 so-called gestational bans – which bar abortions past a certain point in pregnancy – already passed since the start of 2019, none have gone into effect after most of them have been blocked by judges. Oklahoma’s bills are slated to go into effect on November 1, and Montana’s on October 1.
The Biden administration has previously moved to support abortion rights across a slew of different policies. Earlier this month, the Food and Drug Administration removed during the Covid-19 pandemic a requirement that one of the drugs involved in medication abortion be dispensed in person, and the Health and Human Services Department moved to reverse a Trump-era rule barring certain federally funded health care providers from referring patients for abortions, a step long demanded by abortion rights groups.