Judges rule on Idaho abortion law. Both sides call it a victory

Prosecutors can enforce most of Idaho’s ban on assisting minors with abortions in states where the procedure is legal without parental consent, an appeals court ruled Monday.

The 2023 law, known as the “abortion trafficking” bill, was the first of its kind in the country and an attempt by lawmakers to expand the limits of abortion in Idaho beyond state lines.

U.S. Magistrate Judge Debora K. Grasham blocked enforcement of the law after opponents sued the state in the summer of 2023. But after an appeal by the state, a three-judge panel on the 9th Circuit Court of Appeals on Monday overturned much of Grasham’s ruling.

The federal court allowed the state to enforce its laws while the litigation continues, with one exception: Prosecutors cannot bring charges of “solicitation” or attempting to induce a minor to have an abortion.

Both sides of the lawsuit called the verdict a success.

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

Part of the Idaho law likely violates free speech, the court wrote

Idaho law prohibits any adult without parental consent from assisting a minor in obtaining an abortion by “recruiting, harboring, or transporting” the minor.

In July 2023, two abortion advocacy groups – Northwest Abortion Access Fund and Indigenous Idaho Alliance – sued the state, saying the bans violated their constitutional rights.

The appeals court ruled Monday that state bans on harboring or transporting minors seeking abortions will likely stand in court because the U.S. Supreme Court struck down federal rights to the procedure. The bans are punishable by two to five years in prison.

But the judges ruled that the ban on “recruiting” minors was likely a violation of freedom of expression.

The court gave examples. An Idaho resident who lives near Oregon puts a sticker on his car that says, “Legal abortions are OK, and they’re right next door.” Ask me about it!” If a minor saw this sticker and turned to the driver who gave him money for the abortion in Oregon, the driver could be prosecuted, the court found.

The justices also said that distributing pamphlets about the state’s abortion laws, which is legal, could be considered a criminal “attempt” to help a minor get an abortion if the person acted “in concert” with another adult, who helped the minor with the abortion.

In a third example, the court explained that a charge of aiding and abetting could also be brought against an advocacy group that informed a minor about her health care options, gave her contact information for a partner organization in a state where abortion is legal, and “promised to provide her keep the conversation a secret from the minor’s parents.”

“It encompasses a wide range of expressive activities,” wrote Judge M. Margaret McKeown, who was appointed under former Democratic President Bill Clinton. “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.”

The judges also pointed to an aspect of the “recruitment” part of the law that they found “concerning.” This applies not only to minors seeking a legal abortion outside of Idaho, but also to minors seeking a legal abortion within Idaho under one of the narrow exemptions for rape, incest, or saving a mother’s life.

“An adult concerned about the well-being of a minor incest victim would be prohibited from counseling that victim and then assisting that victim in obtaining an abortion without informing a parent – ​​who may be the perpetrator,” McKeown wrote.

“This decision is a significant victory for the plaintiffs because it gives Idahoans the freedom to discuss abortion health care with pregnant minors,” Legal Voice, an abortion rights group representing the plaintiffs, said in a news release Monday.

The abortion law is not “human trafficking,” the judge wrote

The court questioned Idaho’s use of the term “human trafficking,” which generally refers to conduct that is “generally illegal” and has an “economic motive.”

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

One of the judges, Carlos T. Bea, a George W. Bush appointee, dissented from the ruling, arguing that the plaintiffs had “sued the wrong person” because the primary enforcement of the law rests with district attorneys, not the attorney general. ”

In her statement, McKeown noted the multitude of abortion ban laws that have been passed since the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. The decision overturned Roe v. Wade overturned a 50-year-old ruling that established a fundamental right to abortion and instead gave states the power to legislate on the procedures.

“Idaho responded enthusiastically to this invitation,” McKeown wrote.