Idaho Pushes to Reinstate ‘Abortion Trafficking’ Law in US Courts

An attorney representing the state of Idaho urged a federal appeals court on Tuesday to revive a 2023 state law that makes it a crime to assist a minor in crossing state lines for an abortion without parental consent, a law that had been blocked by a lower court judge in November.

“The law is narrow and, one would think, unobjectionable,” said Idaho Deputy Solicitor General Joshua Turner to the three-judge panel of the 9th U.S. Circuit Court of Appeals in Seattle.

“It prohibits adults from recruiting, harboring, or transporting unemancipated minors within Idaho to obtain an abortion, but only when it is done with the specific intent to conceal it from the minor’s parents or guardians.”

A federal judge in Boise halted enforcement of the law in November while considering a lawsuit filed by Lourdes Matsumoto, an attorney and advocate who assists victims of sexual violence, along with the Northwest Abortion Access Fund and Indigenous Idaho Alliance, organizations that aid individuals in accessing abortion services in Idaho. They argued that the law violated their First Amendment rights to free speech.

Their lawyer, Wendy Olson, argued that the law “seeks to criminalize an unclear amount of undefined assistance to minors” and amounted to regulation of protected speech and expression by preventing individuals from informing minors about accessing abortions.

Circuit Judges M. Margaret McKeown and John Owens, both appointed by Democratic presidents, appeared open to reinstating at least part of the law. Circuit Judge Carlos Bea, an appointee of Republican then-President George W. Bush, did not speak during the proceedings.

McKeown posed several questions during the hearing, questioning how transporting someone could be considered speech protected by the First Amendment.

She also asked both parties whether the provision of the law regarding “recruiting” could be blocked, on the grounds that it interferes with speech related to informing minors about accessing abortions, while maintaining the prohibitions on harboring and transporting.

Turner indicated that the recruiting portion could be blocked, whereas Olson argued that harboring and transporting could still be protected by the First Amendment’s freedom of association.

Idaho has strict abortion laws, with exceptions for saving the mother’s life, and in cases of reported rape or incest. However, neighboring states like Washington, Oregon, and Montana allow abortions.

According to Idaho’s law, adults who aid minors in obtaining surgical or medication abortions without parental consent could face a minimum of two years in prison upon conviction.

This case is one of several challenging laws criminalizing assistance in traveling to states where abortion is legal. The U.S. Supreme Court overturned Roe v. Wade in 2022, the landmark 1973 ruling that established the right to abortion nationwide.

A group of healthcare providers in Alabama and a fund that supports individuals in the state filed lawsuits last year to prevent prosecution under a state law for assisting individuals in traveling out of state for an abortion. The state’s Republican attorney general had suggested that individuals who did so could be prosecuted as criminal accomplices.