Appeals court allows Idaho to enforce its abortion trafficking law

A panel of federal judges Monday largely upheld Idaho’s “abortion trafficking” law, a measure passed in the 2023 legislative session meant to punish an adult who helps a minor seek an abortion in another state or obtain medication that will induce an abortion.

The Ninth Circuit Court of Appeals’ opinion reverses U.S. Magistrate Judge Debora K. Grasham’s November 2023 decision, which blocked enforcement of the law after Idaho attorney Lourdes Matsumoto and two advocacy organizations, the Northwest Abortion Access Fund and the Indigenous Idaho Alliance, filed a lawsuit against the state. The plaintiffs alleged the law restricts freedom of speech, the right to travel and the right to freely associate, and said it was too vague to be constitutional. 

Idaho has a near-total ban on abortions at any stage of pregnancy, with exceptions for rape and incest victims who provide a police report documenting the crime and who are no more than 12 weeks pregnant. It is surrounded by several states where abortion is legal, including Washington, Oregon and Montana. Washington allows minors to obtain an abortion without parental permission, and Oregon requires parental consent for girls under the age of 14.

The panel of Ninth Circuit judges determined the law is not too vague to be enforced and does not violate the First Amendment rights of the advocacy organizations who filed the lawsuit. 

However, they did affirm Grasham’s block on one ground. The panel held that the language in the law prohibiting “recruiting” activity to obtain an abortion is overly broad and unconstitutional “because it prohibits a substantial amount of protected expressive speech.” But the other aspects of the law that do not allow individuals to “harbor” or “transport” minors for an abortion can stand, according to the ruling.

One member of the panel, Judge Carlos Bea, partially dissented. He deemed the plaintiffs did not have proper standing to sue because they only sued the state attorney general, who can only enforce the law if one or more county prosecutors refuse to do so, and none have. Bea said he would reverse the district court injunction in full and order that the case be dismissed.

“This is a tremendous victory for Idaho and defending the rule of law as written by the people’s representatives,” Idaho Attorney General Raúl Labrador said in a press release. “Idaho’s laws were passed specifically to protect the life of the unborn and the life of the mother. Trafficking a minor child for an abortion without parental consent puts both in grave danger, and we will not stop protecting life in Idaho.”

Wendy Olson, an Idaho attorney representing the plaintiffs, could not be immediately reached for comment.

What is Idaho’s ‘abortion trafficking law’?

The law, originally House Bill 242, established the crime of “abortion trafficking,” the first law of its type in the nation. Since its passage, Tennessee’s Legislature implemented a similar law, but a judge there has blocked its enforcement for now.  

According to the law, “an adult who, with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion … or obtains an abortion inducing drug for the pregnant minor to use for an abortion by recruiting, harboring or transporting the pregnant minor within this state commits the crime of abortion trafficking.”

Those convicted of “abortion trafficking” would face a penalty between two to five years in prison.