Idaho’s “abortion trafficking” law could mostly go into effect

BOISE, Idaho – This story originally appeared in the Idaho Press.

A panel of judges on the Ninth Circuit Court of Appeals will approve the enactment of much of Idaho’s “abortion trafficking” law as a legal challenge to it continues.

The law prohibits minors under 18 from being transported across state lines to obtain an abortion without parental consent and is the first of its kind to ban performing an abortion in a state where it is legal.

Idaho’s abortion ban makes it a felony to have an abortion in the state except in very narrow circumstances. The procedure is legal in neighboring states such as Washington and Oregon, where adults can also undergo the procedure.

Advocacy groups and an attorney representing sexual assault victims challenged the constitutionality of the law in 2023, and a district judge later issued an injunction blocking the law from taking effect.

In a decision issued Monday, District Court Judge Margaret McKeown wrote the majority opinion partially reversing the district court’s decision and returning it to the lower court. The panel maintained a blockade of the law banning the “recruitment” of minors for abortion, concluding that the overbroad definition of recruitment would likely violate First Amendment-protected speech.

“Encouragement, advice, and emotional support are clearly protected speech under Supreme Court precedent, even when offered in the difficult context of deciding whether to have an abortion,” McKeown wrote.

The ruling departed from the district court’s opinion and held that the “recruitment” aspect of the law could be severed – meaning that the rest of the law could take effect and only the recruitment aspect could not be prosecuted while the interim order is in force.

“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.”

“While the judge’s decision to remove language about ‘recruitment’ from this ban is positive, this decision is not good for Idaho,” said Mistie DelliCarpini-Tolman, director of Planned Parenthood Alliance Advocates Idaho, in a statement via E Statement sent by email. “We must call this ban what it is – a petty travel ban made possible by gross government overreach and invasions of privacy that violate our American democratic principles. AG Labrador’s claim that this ban “protects mothers” is pure hypocrisy and couldn’t be further from the truth: This bill is harming the very people it is designed to protect, the young people of Idaho.”

The court ruled that the plaintiffs — attorney Lourdes Matsumoto, Northwest Abortion Access Fund and Indigenous Idaho Alliance — had standing to sue and that Labrador was a proper defendant, despite arguing that he was not the primary enforcer of Idaho law.

Another judge on the panel, Justice Carlos Bea, wrote a partial concurrence, partial dissent from the majority opinion – arguing that the plaintiffs had no standing to sue Labrador because, Bea argued, the attorney general was not the primary enforcer of the law, and The district attorneys would be the ones who would file the charges.

The majority opinion concluded that the aspects of the law prohibiting “porting” or “transporting” would likely be considered constitutional.

However, because there was no clear definition of what “recruitment” would mean, the panel assumed that the plaintiffs would likely succeed in arguing that this section violated the First Amendment. The panel also said that because of the way the law was written, it may also ban counseling on the few legal abortion options in the state.

“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.” “The state may have a pregnancy carried out as a result of rape or incest that was previously reported to law enforcement,” the judge wrote. “That is, an adult concerned about the well-being of a minor incest victim would be prohibited from counseling the victim and then assisting the victim in obtaining an abortion without informing a parent – ​​who may be the perpetrator.”

The statement also questioned the use of the word “human trafficking” in the name of the law, as the law differs from traditional laws prohibiting human trafficking. Human trafficking laws typically prohibit coercive behavior to facilitate illegal activity, the judge wrote, but Idaho’s abortion law also prohibits behavior that the minor consents to for the sake of a legal process.

“Calling the law an ‘abortion trade’ does not mean that it is,” the judge wrote.

The court disagreed with the district court’s ruling that the entire law was “unconstitutionally vague.” The panel found that the law “does not violate the vagueness limit despite its cumbersome construction.” The court also struck down other First Amendment claims regarding aspects of the law outside the area of ​​“recruitment.”

The Idaho Legislature passed HB 242 in 2023, making it a felony punishable by up to five years in prison to help a minor travel across state lines to obtain an abortion.

The bill’s sponsor, Rep. Barbara Ehardt, R-Idaho Falls, argued it was a parental rights bill. Advocates expressed grave concern that there is no exception for children in abusive families who may not feel safe disclosing their pregnancy or decision to have an abortion, the Idaho Press previously reported.

The case goes back to the district court to revise its preliminary injunction to make it consistent with the Ninth Circuit’s decision.

Find more stories from the Idaho Press here.