Idaho’s “abortion trafficking” law can largely be enforced through litigation, the court ruled

BOISE, Idaho – A federal appeals court ruled Monday that most of Idaho’s first law making it illegal to help minors get an abortion without their parents’ consent can go into effect while a legal battle over its constitutionality continues.

The 9th U.S. Circuit Court of Appeals decision said the legal prohibition on assisting a minor to have an abortion through shelter and transportation with the intent of concealing the procedure from the minor’s parents is likely to be viewed as constitutional and enforced can be.

However, part of the law remains blocked. The court found that the law’s ban on “recruiting” pregnant teenagers violated the First Amendment. This means that, for now, prosecutors cannot charge a person with “recruiting” or influencing a minor to have an abortion.

“Encouragement, advice, and emotional support are clearly protected expressions,” the court wrote, even when those expressions occur “in the context of the decision to have an abortion.”

The ruling largely reverses U.S. Judge Debora K. Grasham’s decision, which blocked enforcement of the law after opponents sued the state in the summer of 2023.

Abortions are banned in Idaho at all stages of pregnancy, and the law passed in 2023 is intended to prevent minors from having abortions in states where the procedure is legal unless they have their parents’ permission.

Proponents of the law call it a “ban on the abortion trade.” Opponents say it is an unconstitutional ban on interstate travel and the right to free speech. Both sides called Monday’s ruling a victory.

“This decision is a significant victory for the plaintiffs because it gives Idahoans the freedom to discuss medical abortion care with pregnant minors,” said Wendy Heipt, an attorney for the plaintiffs, in an emailed statement Monday.

She said the plaintiffs, which include several advocacy groups, are also considering their appeal options.

Idaho Attorney General Raúl Labrador called the ruling a victory for the state in an emailed statement.

“Idaho’s laws were specifically enacted to protect the life of the unborn and the life of the mother,” Labrador said. “Trafficking a minor child for an abortion without parental consent puts both at great risk, and we will not stop protecting life in Idaho.”

The law makes it illegal to obtain abortion pills for minors or help them leave the state for an abortion without their parents’ knowledge and consent. Anyone convicted faces a prison sentence of two to five years and can also be sued by the minor’s parents or guardian. A parent who raped their child cannot sue, but criminal penalties remain for anyone who helped the minor get an abortion.