Idaho’s ‘abortion trafficking’ ban can go into effect, judges rule

Idaho already bans almost all abortions. On Monday, a panel of federal judges ruled that the state can enforce parts of its draconian “abortion trafficking” law.

The Ninth Circuit federal appeals court on Monday allowed parts of Idaho’s ban on “abortion trafficking” to take effect.

Now Idaho could once again criminalize adults who “harbor or transport” people under 18 to perform abortions without parental consent. Anyone who violates the law can be sentenced to two to five years in state prison. This week’s ruling overturned a lower court’s decision to block the state from enforcing the rule while a lawsuit challenging the law is filed in court.

Idaho already bans almost all forms of abortion. In 2023, Idaho became the first state to introduce a new “abortion trafficking” crime, designed to prevent people from assisting minors in abortions in neighboring states where the procedure remains legal. Since then, lawmakers in at least five other states have introduced copycat laws. Tennessee passed its own ban on “abortion trafficking” earlier this year. Abortion rights advocates have also sued to block the ban. A federal judge has temporarily blocked the state from enforcing the law while the matter is heard.

Travel bans are one of the main ways abortion opponents criminalize reproductive care, even in states where abortion is legal. In addition to bans on “human trafficking,” at least thirteen Texas municipalities have made it illegal to transport people through their jurisdictions for abortions. Last year, two advocacy groups in Idaho – Northwest Abortion Access Fund and Indigenous Idaho Alliance – and an attorney representing it made it illegal. Sexual assault survivors sued the attorney general, saying the law was unconstitutional and violated their rights to free speech and while traveling interstate. A federal judge then temporarily blocked the law from coming into force.

Idaho’s Republican Attorney General Raúl Labrador then challenged the injunction. On Monday, a Ninth Circuit panel of judges largely sided with Labrador, saying the state could arrest people who “harbour or transport” children to obtain abortions.

However, the justices upheld the law’s injunction prohibiting “recruiting” minors for an abortion. The panel concluded that the wording of the law was too broad and therefore violated protected speech. The justices noted that the term “recruitment” could criminalize a variety of actions, including subsidizing travel expenses, providing legal advice or simply sharing information about abortion access.

“What is concerning is that the ‘recruitment’ provision involves encouraging an adult to not only obtain a legal abortion out of state, but also to obtain a legal abortion in Idaho under one of the few exceptions to the state’s near-total abortion ban.” “To allow the state to carry out pregnancy, such as a pregnancy resulting from rape or incest that was previously reported to law enforcement,” the judges wrote. “That is, an adult concerned about the well-being of a minor incest victim would be prohibited from counseling that victim and then helping that victim obtain an abortion without informing a parent — who could well be the perpetrator.”

The justices then sent the case to the only federal district court in Idaho, which will make a final decision. In a media statement, Labrador called Monday’s ruling a victory for “the rule of law” in his state and “the lives of the unborn.”