Law on “abortion trafficking” partially clarified by court

A federal appeals court ruled Monday that Idaho can enforce a unique “abortion trafficking” law against those who harbor or transport a minor out of state to obtain an abortion without parental consent.

But the San Francisco-based 9th U.S. Circuit Court of Appeals in its ruling blocked part of the law that prohibits “recruiting” minors for abortion.

Idaho, which bans abortion in almost all cases, passed the abortion trafficking law in 2023. It makes “recruiting, harboring, or transporting” a minor with the intent to assist her in obtaining an abortion and concealing it from her parents or guardians punishable by two to five years in prison.

Lourdes Matsumoto, a lawyer and advocate who works with victims of sexual violence, and two groups that support abortion rights sued the state to challenge the law shortly after it passed.

They argued that the law violated their right to free speech under the First Amendment of the U.S. Constitution and that the threat of prosecution prevented them from counseling minors seeking abortions.

District Judge M. Margaret McKeown wrote for the majority that lodging and transportation were not at issue, partially reversing a lower court order that had blocked the entire law.

However, she wrote that recruitment could include “a wide range” of speech protected by the First Amendment, “from encouragement, advice and emotional support to education about available medical services and reproductive health care to public advocacy to promote abortion care and the.” access to abortion.”

McKeown said that while freedom of speech can be restricted if it is part of a crime, it is not a crime for an Idaho resident to have an abortion in a state where it is legal.

“Idaho’s asserted police powers do not properly extend to abortions legally performed outside of Idaho,” she wrote.

Both sides claimed to have won in the verdict.

Idaho Attorney General Raul Labrador called the ruling “a tremendous victory” in a statement, adding: “We will not stop protecting lives in Idaho.”

Wendy Heipt, an attorney for the plaintiffs, said in a statement that the ruling is “a significant victory for the plaintiffs” because it gives Idahoans the freedom to discuss abortion health care with pregnant minors.

McKeown was joined by District Judge John Owens. Both were appointed by Democratic presidents. District Judge Carlos Bea, an appointee of former Republican President George W. Bush, disagreed, saying the entire challenge to the law should be dismissed because the plaintiffs had sued Labrador, not the local prosecutors charged with enforcing the law .

Idaho’s abortion ban provides only narrow exceptions to save the life of the mother and for rape or incest reported to police.

Idaho borders Washington, Oregon and Montana, which have far more permissive abortion laws.

Law on “abortion trafficking” partially clarified by court

ByAmelia Journalton

By Amelia Journalton

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