If there was any doubt that Roe v Wade has been nullified, Idaho’s governor, Brad Little, put an end to it on Wednesday, when he signed SB1309, known officially as the Fetal Heartbeat Preborn Child Protection Act, into law. Like Texas’ SB8, Idaho’s new law bans all abortions after six weeks’ gestational age, in plain violation of Roe. But like SB8, the law may well be able to go into effect as scheduled next month, because it is enforced not through state action, but through private lawsuits.
The supreme court is likely to overturn Roe this summer anyway, in the widely anticipated Dobbs v Jackson ruling. But almost all abortions have been illegal in Texas since September, when the court gave its blessing to SB8’s private enforcement provision and allowed the law to go into effect. Since the court gave the nod to SB8, other Republican-controlled states have rushed to pass copycat bills, eager to outlaw abortion within their borders even before the downfall of Roe in a few months. According to the reproductive rights research group the Guttmacher Institute, SB8 copycat bills have been introduced in 12 states, including Alabama, Louisiana, Missouri, Ohio, Oklahoma and Tennessee. But Idaho’s is the first to be signed into law.
The substantive impact of Idaho’s SB1309 will be much the same as that of SB8: abortion clinics will close under threat of liability, and women in the state will be subjected to the material harm and moral indignity of not being able to make decisions about their own bodies, or personal decisions about the course of their own lives. Abortion providers will leave, or change their practice; clinics in neighboring, Democratic-controlled states, like Washington and Oregon, will see an influx of patients, reproductive refugees seeking in a different territory the treatment they’re denied in their own. Local abortion funds will drain their coffers helping patients buy tickets for buses and planes out of state – that is, unless they get sued out of existence, too.
But SB1309 also differs from SB8 in several crucial ways, and those differences may highlight how the anti-choice right may govern in the post-Roe future. Unlike SB8, SB1309 allows an exemption for pregnancies caused by rape or incest – so long as those assaults were reported, that is, which fewer than one-third of such incidents are, according to Rainn. The Idaho law has a bigger minimum reward for plaintiffs than the Texas law does: the private citizens who sue abortion providers in Texas will collect at least $10,000 if they win, but in Idaho, the prize is $20,000. And crucially, the Idaho law limits the range of potential plaintiffs. In Texas, any citizen – including those residing out of state – can sue over any abortion performed in Texas after six weeks. But in Idaho, in order to sue over an abortion, a plaintiff needs to be a family member of the woman who had the abortion, the man who fathered her pregnancy, or a family member of that man. Reported rapists are excluded from the right to sue, but their family members are not.
To pro-choice Americans, this smaller pool of potential litigants in the Idaho law might sound like good news. Fewer people with a right to sue over abortions means that patients and their medical providers have fewer enemies to worry about, fewer nefarious actors to look over their shoulders for. In Texas, denying women the right to choose has become everyone’s prerogative, subsuming the issue of abortion into a state of generalized surveillance and vigilantism. Idaho isn’t like that. In Idaho, denying women the right to choose is a private, family matter.
But the keep-it-in-the-family approach of Idaho’s SB1309 has its own sinister and insidious logic. By granting a patient’s parents, siblings, partners and in-laws the right to sue over her choices regarding her own body and life, the law implies that these parties have a particular interest in, or perhaps even ownership over, that woman. The logic is that women are the possessions of their families, and that those families – namely, their fathers and husbands, though the Idaho law extends to female relatives as well – have an interest, even a right, to control them.
SB1309’s private cause of action is targeted, granting these relatives the right to sue providers only over abortion. But the notion that the parents, husbands, and in-laws of adult women have a legitimate legal claim to control those women’s bodies and lives is one that could be expanded even beyond the question of reproductive choice. As heinous as the abortion ban is, it may not stop there.
SB1309’s conception of women as family possessions harkens back to ancient idea of women as the property of their fathers – property that could be transferred to other men in a transaction known as marriage. It is interesting that SB1309 also names fathers and their family members as having an interest in the woman’s choices, implying that the right to control her and her body can be extended by inseminating her. If this all sounds baroque and morbid, like something out of the Old Testament, that’s because it is: the Idaho bill was lobbied for by a group that calls itself the Idaho Family Policy Center, a non-profit dedicated to “promoting Biblically sound public policy”.
In this way, Idaho and Texas seem somewhat at odds over what the justifying logic behind the abortion bans of the post-Roe future should be. Are women’s bodies public property, like Texas says, subject to regulation by anyone and everyone? Or are they private property, like in Idaho, subject to the more intimate terrorizing control of husbands, fathers, brothers and in-laws? It’s not clear which vision will prevail. We can only wait for the next Republican-controlled state legislature to weigh in.
Moira Donegan is a Guardian US columnist
