Can California Protect Against Idaho’s “Abortion Trafficking” Law?

Less than an hour after California’s attorney general announced new plans to strengthen state protections for abortion seekers, a federal appeals court reinstated part of an Idaho law that curbed efforts to allow a minor to have an abortion in another state without her parents’ consent to help is punishable.

The dueling actions highlight the divergence between states that want to protect reproductive freedoms and those that act against them. They also make clear that while laws like California’s law protect residents from most legal actions in other states, they cannot provide complete protection.

Under Idaho law, it was a felony punishable by two to five years in prison to “recruit, harbor, or transport” someone under 18 for an abortion without parental permission.

The law went into effect in May 2023 and was blocked six months later by a federal judge, who ruled that it violated the freedom of speech of those seeking to assist or encourage a minor to have an abortion. On Monday, the 9th U.S. Circuit Court of Appeals ruled that the ban on recruiting minors could impede the free speech of those who provide abortions to minors elsewhere, but reinstated the law’s ban on harboring or deporting abortion-seeking teens from the state.

“Encouragement, advice, and emotional support are clearly protected speech under Supreme Court precedent, even when offered in the difficult context of deciding whether to have an abortion,” Justice Margaret McKeown wrote.

She said the law’s ban on recruiting minors could be used to prosecute someone who was merely giving legal advice to a girl, or even a neighbor who was driving a car near another state’s border with a bumper sticker on it The sign read “Legal abortions are OK.” They are right next door. Ask me about it!”

But neither “accommodating” nor “transporting” a minor for an abortion is an explicit act, so banning those acts does not violate the constitutional rights of people who help minors travel outside of Idaho for a legal abortion, McKeown said , an appointee of President Bill Clinton.

Judge John Owens, appointed by President Barack Obama, joined McKeown’s opinion, while Judge Carlos Bea, appointed by President George W. Bush, voted to reinstate the entire law.

While Idaho and a dozen other states responded to the 2022 Supreme Court ruling striking down the constitutional right to abortion with near-total bans, California passed laws shielding doctors and other health care providers from prosecution for providing abortions women arriving in other states and tried to protect the women too.

A law was passed Monday with the support of Attorney General Rob Bonta that would ban criminal charges against anyone in California who makes, receives or distributes mifepristone, the drug used in nearly two-thirds of all abortions in the United States. Recent laws in California and six other states prohibit their officials from cooperating with another state’s investigation into that state’s abortion providers.

Sara Ainsworth, legal and policy director at IfWhenHow, a reproductive rights group involved in the Idaho case, said the court’s rejection of Idaho’s ban on “recruiting” minors for abortions would harm abortion providers in other states and family members both within as well as outside protect Idaho.

“California law has no bearing on what Idaho prosecutors do within their borders regarding acts that occurred in Idaho,” Ainsworth said by email. “But someone in Idaho who simply referred a minor to a provider in California or another state where abortion is legal should actually be protected from prosecution by this decision.”

She said the court’s definition of legally protected “solicitation” would include telling a young person where they could get an abortion, informing them of their rights and “even providing financial and emotional support” as long as the Person does not actually transport or “accommodate” the minor en route to an abortion clinic.

But that’s not a 100% protection, as California and other states noted in a filing with the appeals court.

Suppose, they said, that a young girl in Idaho called her aunt in another state and said she needed an abortion and couldn’t tell her parents. “If the aunt pays for her niece’s bus ticket…is that ‘transportation’ – or, as Idaho law requires, ‘human trafficking’?” they asked.

Apparently so, the states’ attorneys said, because Idaho law “restricts the ability of providers, organizations and others in (nearby) states to disclose necessary information to minor patients.” And they noted that they ” have recently seen a tremendous influx of Idaho patients seeking legal abortion care within our borders.”

Reach Bob Egelko: [email protected]; X: @BobEgelko