There has been a lot of debate in the pro-life movement surrounding the efficacy of pursuing fetal heartbeat legislation. There has been concern this type of legislation would be struck down by the courts and used to reaffirm Roe and further solidify abortion as a so-called constitutional right. Of course, this is a valid concern, but it is a risk with any pro-life legislation. Then Texas threw the courts a curve ball with the addition of a private enforcement mechanism in its fetal heartbeat law. The Texas law has survived a myriad of legal challenges for over six months.

 

Encouraged by the success of the Texas fetal heartbeat law, on March 25 Idaho Governor Brad Little signed the “Fetal Heartbeat, Preborn Child Protection Act.”  Idaho passed a fetal heartbeat law last year, but it did not contain a private enforcement mechanism and was blocked by the courts. This new legislation is modeled after the Texas law in that it contains a private enforcement mechanism but there are some differences. In addition to a medical emergency exception, the Idaho law also has rape and incest exceptions for reported cases. The Idaho law also limits the ability to sue to family members, except for men accused of rape or incest, of the aborted child.

 

The law is set to go into effect on April 22, but of course Planned Parenthood filed suit with the Idaho Supreme Court on March 30 for an expedited hearing to block enforcement of the law. The Attorney General’s office has requested an extension and argued that the case should be brought it district court first.

 

The Idaho Governor Brad Little, even though pro-life, did not seem to fully understand or support the law. Governor Little waited until the last possible moment to sign the bill and issued a truly bizarre statement, which seemed to indicate that he opposed the bill he just signed. The Governor’s concerns related to the legality of the private enforcement mechanism, not abortion itself.  Also, back in February, Chief Deputy Attorney General Brian Kane wrote an opinion expressing constitutional concerns with the bill, specifically creating an undue burden, treating abortionists differently than other doctors, and the private enforcement mechanism.

 

It is common for state attorney generals’ offices to issue advisory opinions regarding pending legislation. Since abortion is legal, many attorney generals see any abortion legislation as unconstitutional. Planned Parenthood cited the concerns raised by the State to support their contention that the law is unconstitutional.  Additionally, even if this legislation had the full support of the State, Idaho is in the 9th Circuit; a Circuit that is not traditionally known to be friendly to pro-life legislation. Unfortunately, the Idaho law may not be as successful as the Texas original.

 

The fact the State is undermining the very aspect of the law that has made it successful in Texas is very troubling. The legality of private enforcement mechanisms is a complex one, but it is not new. Private enforcement can be a very effective tool when the government, out of incompetence or malice, does not uphold the law. Laws are only as good as their enforcement. Governor Little says that if places like Idaho and Texas can use private enforcement in the context of abortion, other places, for example California, could use private enforcement in the context of the Second Amendment. This may or may not be true. Again, this is a very oversimplified view of a complex legal issue. But as mentioned above, private enforcement mechanisms are not new. If Governor Little’s assessment is correct, California could already use a private enforcement mechanism, regardless of whether Texas and Idaho use private enforcement to protect unborn lives, because it is a legal mechanism that already exists.

 

One thing has become abundantly clear over the past 50 years, when it comes to abortion jurisprudence, anything goes. Law and constitutional principles are constantly manipulated to protect the legality of abortion. The private enforcement mechanism is something that already exists. Texas took an existing legal remedy and applied it to the abortion context, and as unbelievable as it may seem, it worked, and children are being saved. It is very promising that Idaho passed a fetal heartbeat law with a private enforcement mechanism. Let us hope that even with the less than enthusiastic support from the State, the Idaho law will also withstand court challenges, and other states follow suit.

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Ana Brennan, J.D.

Vice President

Society of St. Sebastian

Senior Editor

Journal of Bioethics in Law & Culture

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