A federal appeals court ruled on Monday that Idaho can partially enforce its “abortion trafficking law,” which prevents adults from “harboring” or “transporting” minors out of state to terminate a pregnancy without their parents’ consent.
The law, the first of its kind in the country, went into effect in May of 2023. It was blocked in November of that same year after plaintiffs sued the state, saying the law impedes on basic rights.
The statute defines the crime of “abortion trafficking” as helping procure an abortion or an abortion-inducing drug for an unemancipated minor by “recruiting, harboring, or transporting the pregnant minor within this state.”
Plaintiffs Attorney Lourdes Matsumoto, and the nonprofit groups Northwest Abortion Access Fund and Indigenous Idaho Alliance argued the law prevents them from counseling or sharing information with minors seeking legal abortions out of state, going against the plaintiffs’ constitutional right to free expression. They say it also infringes the right to travel and the right to freely associate.
The 9th U.S. Circuit Court of Appeals in San Francisco ruled that “harboring” and “transporting” were not forms of speech and partially lifted the injunction.
In the opinion, Judge M. Margaret McKeown wrote “recruiting” however represented a “large swath of expressive activities” which can include “encouragement, counseling, and emotional support” as well as education and information on available medical services. That part of the law remains blocked as the case continues to make its way through the courts.
McKeown also wrote that Idaho’s police powers do not extend to abortions legally performed outside of the state. Under the trafficking statute, those prosecuted can face a minimum of two years in prison.
“This is a tremendous victory for Idaho and defending the rule of law as written by the people’s representatives,” said Attorney General Raúl Labrador in a statement.
Planned Parenthood regional director Mistie Delli-Carpini-Tolman called the ruling frightening.
“Simply protecting speech doesn't address the criminalization of essential acts of support,” she said. “It doesn't address the broader chilling effects on speech by people who might be afraid of potential misinterpretation or prosecution.”
“This idea of surveilling citizens and trying to track their movements, where they're going, what they're doing. These are not American principles,” Delli Carpini-Tollman added. “And it's a really, really concerning precedent that's being set.”
Idaho bans abortions in most cases, with exemptions for rape and incest, and when the life of the mother is in danger.
The trafficking law allows the Attorney General to bring charges if county prosecutors choose not to do so.
