Texas is being emulated: six months following the entry into force of a law limiting abortion and allowing Texans to denounce people who have practiced, or even only facilitated, abortion beyond the six weeks now authorized, Idaho follows suit. This western American state, dominated by the Republican Party, adopted a text inspired by the Texan precedent. A sign of what might happen in many states if the Supreme Court reverses, even if only partially, the legalization of abortion, in a decision expected before the summer.
Prohibition of abortion following six weeks of pregnancy
The law adopted Monday, March 14 by a very large majority by elected officials in Idaho prohibits abortion as soon as a heartbeat is detected – generally from the sixth week of pregnancy, i.e. even before the majority of women are aware of being pregnant. The only exceptions are cases of rape and incest, provided they have been reported to the police.
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This law also provides that relatives (brothers and sisters of the mother, her parents, etc.) can sue the people directly involved in the abortion, up to four years following the surgery. Rewards of at least $20,000 (€18,000), in addition to legal costs, are expected if successful in court.
Even more than Texas, Idaho is largely controlled by Republicans: they hold 58 of the 70 seats in the local House of Representatives, and 28 of the 35 seats in the Senate. The governor is also a Republican in this state where the possibilities of abortion are already limited: abortion is only possible in three clinics, for a population of 1.7 million inhabitants living on more than 216,000 km2.
A law inspired by the Texan precedent
Texas had adopted in May 2021, the Texas Heartbeat Act (“law of the heartbeat”), which has become the most restrictive legislation on the subject in the United States. Abortion is now prohibited there as soon as a « cardiac activity » (electrical signals sent by the cells in the area of the future heart) is detected in the embryo. Until then, 85% of abortions in Texas took place beyond this deadline.
Unlike Idaho, Texas has no exceptions. It also allows anyone to sue not only the doctors who performed the abortion, but also anyone who intervened, in any other capacity (taxi driver who drove the woman to the clinic, for example). The Texas law was able to take effect as early as September 1, 2021, but it remains contested in court.
Abortion in question before the Supreme Court
It is an earlier law, passed in 2018 by Mississippi, which reached, from appeal to appeal, the level of the Federal Supreme Court. The latter must decide before the summer on this text which prohibits abortion from the fifteenth week, in contradiction with the judgment which legalized abortion in 1973.
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In 1973, the judges of the highest judicial authority in the country ruled, by 7 votes to 2, that the ban on abortion was contrary to the American Constitution. They had set as a criterion the viability of the fetus outside the uterus, then estimated at 28 weeks, now set at 23, due to advances in medical technology.
However, since the appointment of three judges by Donald Trump – and in particular the replacement of Ruth Bader Ginsburg, icon of the American left who died in September 2020, by Amy Coney Barrett, favorite of the Christian right –, the Supreme Court seems willing to return , at least in part, on the historic 1973 decision. This would allow states that wish to impose restrictions, as Texas and Idaho have done.
