Intimidation is the name of the game for red state legislatures

Idahoans woke up to a jarring headline on Sept. 27. White House press secretary Karine Jean-Pierre had issued a statement calling Idaho’s abortion laws “extreme and backwards” because, well, they are. The provisions of Idaho’s numerous abortion laws are certainly oppressive, but that is not the half of it.

Numerous laws passed by Idaho and other extremist red state legislatures are largely intended to intimidate disfavored groups, rather than to carefully spell out prohibited conduct. It has become an all-too-common practice among hard-right legislators.

Take, for example, the law targeted by the White House. It is a convoluted statute called the “No Public Funds for Abortion Act” that prohibits state colleges and public schools from promoting abortions. There was no evidence that such activity was occurring in the state, but that did not stop Idaho’s legislature. Extremist GOP legislators used the fake issue to rile up their base and garner votes.

The law is poorly drafted and contains provisions that violate First Amendment free speech protections. But it also contains stiff criminal penalties. The state colleges recently put out legal guidance to their personnel, warning about the law and its potential adverse consequences for school employees. The legally infirm law got the result intended by lawmakers. It intimidated state employees who had not been doing anything wrong.

This has been a consistent practice of red state legislatures in recent years. They weaponize culture war issues that likely are not a problem in their state for the purpose of intimidating target groups from doing things that are constitutionally permissible. A prime example is the Texas vigilante abortion law, which gives private parties the right to recover $10,000 from doctors who perform abortions. Its purpose was to intimidate doctors from performing abortions even before the Roe v. Wade decision was overturned, and it had the intended effect.

Idaho followed Texas’s lead, but upped the bounty to a minimum of $20,000, each, for the abortion patient and her family members. Like many other red states, Idaho has several other draconic abortion laws, including one that makes it a felony offense, with a mandatory minimum prison sentence of two years, for anyone helping with an abortion. This is a clear case of blunt-force intimidation against doctors and their staff members.

And it’s not just abortion. The tactic applies to the whole array of culture war issues — critical race theory, LGBTQ rights, transgender issues, book bans, you name it. Red state legislatures are supplied with drafts of legislation from a large number of rightwing organizations, including the American Legislative Exchange Council, the State Policy Network and the Family Research Council. The bills are not drafted with precision for the purpose of establishing well-defined public policies but, rather, worded to extend prohibitions to the maximum extent possible, often beyond constitutionally permissible bounds.

As of March 2022, 16 states, including Idaho, had enacted laws restricting education on race, while 19 more were considering them. Idaho’s law does not even purport to define what critical race theory is. Like the laws of many other red states, the law is constitutionally unenforceable on First Amendment and vagueness grounds. That is of no import to the drafters. Challenging such laws in court is costly and time consuming, so most schools simply give in to the intimidation and limit their teaching of historical facts.  

I have my own experience in this regard. I was recently asked to speak about critical race theory to a group in southern Idaho. The group was interested in learning what it was. The venue was to be a public-supported community college. Fear arose that public funding for the school would be jeopardized, even with an objective discussion, so my Oct. 5 talk was rescheduled at a local church. The sponsors understood the statute was unconstitutional, but they did not want to have to litigate the matter.

Book banning is another favorite culture war issue for red state legislatures. Idaho, like many other red states, has a statute that criminalizes “disseminating material harmful to minors.” Not exactly a law capable of definition or of surviving a First Amendment challenge. The Idaho legislative zealots attempted to criminalize librarians under the statute this year, but narrowly failed. However, by loudly raising this fake issue, efforts were made across the state to intimidate librarians into removing books and even resigning. Of course, this is a national phenomenon, fanned by red state extremists.

And so it goes. Red state legislators enrage their supporters by raising fake culture war issues and then by making a big show of “fixing” them. The remedy is usually hastily-conjured, ambiguously-worded legislative measures that often exceed constitutional limitations. Targeted groups — public employees, doctors, whoever — are intimidated into inaction for fear of prosecution or the cost and expense of litigation. These irresponsible legislators will continue getting away with this unconscionable grift unless the public rises up at the ballot box. The ball is in the voters’ court.

Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.