Appeals court allows Idaho to enforce its abortion trafficking law

A group of federal judges on Monday largely upheld Idaho’s “abortion trafficking” law, a measure passed in the 2023 legislative session that would penalize an adult who helps a minor seek an abortion or obtain drugs in another state cause an abortion.

The Ninth Circuit Court of Appeals reverses U.S. Judge Debora K. Grasham’s November 2023 decision that blocked enforcement of the law after Idaho attorney Lourdes Matsumoto and two advocacy groups, the Northwest Abortion Access Fund and the Indigenous Idaho Alliance, had filed a lawsuit against the state. The plaintiffs claimed the law restricted freedom of speech, the right to travel and the right to free association and said it was too vague to be constitutional.

Idaho has a near-total ban on abortion at any stage of pregnancy, except for rape and incest victims who provide a police report documenting the crime and are no older than 12 weeks. It is surrounded by several states where abortion is legal, including Washington, Oregon and Montana. Washington allows minors to have an abortion without parental permission, and Oregon requires parental consent for girls under 14.

The panel of Ninth Circuit judges concluded that the law is not too vague to be enforced and that it does not violate the First Amendment rights of the advocacy groups that filed the lawsuit.

However, they confirmed Grasham’s block for one reason. The panel concluded that the law’s language prohibiting “recruitment” for abortion-providing activities was overbroad and unconstitutional “because it prohibits a significant amount of protected expression.” But the other aspects of the law that do not allow individuals to “harbour” or “transport” minors for an abortion can remain in place, according to the ruling.

A member of the panel, Judge Carlos Bea, partially disagreed. He held that the plaintiffs lacked adequate standing because they had only sued the attorney general, who could only enforce the law if one or more district attorneys refused to do so, and none of them had done so. Bea said he would completely lift the district court’s preliminary injunction and order the case dismissed.

“This is a tremendous victory for Idaho and the defense of the rule of law as written by the people’s representatives,” Idaho Attorney General Raúl Labrador said in a news release. “Idaho’s laws were specifically created to protect the life of the unborn and the mother. Trafficking a minor child for an abortion without parental consent puts both at great risk, and we will not stop protecting life in Idaho.”

Wendy Olson, an Idaho attorney representing the plaintiffs, could not immediately be reached for comment.

What is Idaho’s “abortion trafficking law”?

The law, originally House Bill 242, established the crime of “abortion trafficking” and was the first law of its kind in the country. Since its passage, Tennessee lawmakers have implemented a similar law, but a judge there has blocked its enforcement for now.

According to the law, “an adult who, with the intent to conceal an abortion from the parents or guardian of a pregnant minor, either procures an abortion… or obtains an abortion drug for the pregnant minor to use for an abortion.” Recruiting, harboring, or transporting pregnant minors within this state constitutes the crime of abortion trafficking.”

Anyone convicted of “abortion trafficking” faces a prison sentence of between two and five years.