Idaho can enforce a ban on helping minors leave the state for abortions, with one exception, 9th Circuit says

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First Amendment

Idaho can enforce a ban on helping minors leave the state for abortions, with one exception, 9th Circuit says

By Debra Cassens Weiss

December 3, 2024, 10:15 a.m. CST

A federal appeals court has blocked just one provision of Idaho’s abortion law that prohibits assisting minors in obtaining abortions.

In a 2-1 decision Monday, the 9th U.S. Circuit Court of Appeals in San Francisco ruled that Idaho cannot ban the recruitment of minors for abortions but can enforce other provisions of the law.

Law360, Reuters and Bloomberg Law have coverage.

Idaho law prohibits adults from recruiting, harboring or transporting minors to perform an abortion with the intent of concealing the procedure from the girl’s parents. Anyone who violates the law faces a prison sentence of two to five years.

The appeals court said the recruiting ban likely violated the First Amendment, but the statutory ban on harboring and transporting minors did not.

The recruiting ban “prohibits a significant amount of protected expression compared to its clearly legitimate scope,” Justice M. Margaret McKeown wrote in the Dec. 2 majority decision. McKeown is an appointee of former President Bill Clinton.

McKeown mentioned decisions to protect street counselors who try to discourage women who enter abortion clinics from having abortions.

“If advising those about to have an abortion to carry their pregnancy to term is undoubtedly protected speech, then it is certainly the opposite,” she wrote.

But the ban on lodging and transportation is likely constitutional because it does not prohibit explicit conduct, McKeown said.

Judge Carlos T. Bea wrote in a dissent that he dismissed the entire case because the plaintiffs sued the wrong defendant for the lawsuit in federal court. Bea is an appointee of former President George W. Bush.

Idaho bans abortions except to prevent the death of the pregnant person or in cases of rape or incest reported to police. It was the first state to criminalize assisting a minor in obtaining an abortion, even if the procedure is legal in the state where it is performed.

The plaintiffs who filed suit were Idaho attorney Lourdes Matsumoto, who represents victims of sexual and domestic violence, the Northwest Abortion Access Fund and the Indigenous Idaho Alliance.

The case is Matsumoto vs. Labrador.