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Idaho Gets to Enforce 2 Out of 3 Parts of Dystopian ‘Abortion Trafficking‘ Law

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In 2023, Idaho became the first state in the nation to enact a so-called “abortion trafficking” law, which defines trafficking as acts of "recruiting, harboring, or transporting" a minor with the intention of helping them get an abortion without parental permission. By the end of the year, an Idaho court temporarily blocked the law. 

But on Monday, a federal circuit court issued a permanent ruling: Idaho can enforce part of the law — specifically, the part that threatens adults who “harbor” or “transport” a minor across state lines for abortion with two to five years in prison. Even if they went to a state where abortion is legal. However, the ruling strikes down the portion of the law that criminalizes acts of “recruiting” minors, finding that the law’s nebulous definition of “recruitment” violates free speech rights. 

In 2023, the Northwest Abortion Access Fund, the Indigenous Idaho Alliance, and Idaho-based victims' rights attorney Lourdes Matsumoto sued the state, arguing the “abortion trafficking” law impeded their ability to counsel minors and abuse victims seeking abortion care. At the time, Matsumoto said there was already "a lot of fear of what [her clients] even want to tell me." Under Idaho's law, she warned that it would be "illegal potentially for me to tell them what they can do" to reach care, and that barriers around access to abortion-related information disproportionately harmed young abuse victims from marginalized groups, like immigrant communities and communities of color: “We try to reach communities that have been traditionally marginalized, and those people are already afraid of law enforcement and seeking help. By the time those people reach out and trust one individual, one adult, that’s a huge step. So if you are not able to be trusted, the whole community is going to go backwards, and they’ll go back and tell their community it’s not a safe place.”

In the San Francisco-based 9th U.S. Circuit Court of Appeals ruling this week, Judge M. Margaret McKeown wrote that “recruiting” minors for supposed “abortion trafficking” could include "a large swath" of speech protected under the First Amendment. This includes “encouragement, counseling, and emotional support" as well as "education about available medical services and reproductive healthcare" and "public advocacy promoting abortion care and abortion access." McKeown noted that it remains legal for Idaho residents who are not minors to travel to access abortion in a state where it’s legal.

Wendy Heipt, an attorney for the plaintiffs, called the ruling "a significant victory for the plaintiffs, as it frees Idahoans to talk with pregnant minors about abortion health care." However, the looming threat of criminalization for acts like, say, giving a minor a ride across state lines, remains, and will surely stop some minors from being able to access abortion. The state's virulently anti-abortion attorney general actually called the ruling “a tremendous victory.”

A report by Guttmacher from April showed one in five minors don’t know where they can get an abortion, compared to 11% of adults. “Anti-abortion policymakers are co-opting language like ‘trafficking’ because their goal is to stop young people from accessing care by demonizing those who support them,” the reproductive justice legal organization If/When/How said on Monday.

Republican lawmakers have increasingly targeted abortion-related travel or acts of helping someone travel for care, despite how the Constitution explicitly protects a right to interstate travel — including for abortion. Still, in July, U.S. Senate Republicans blocked a bill to codify this right. Several Texas counties have outlawed the use of their highways for abortion-related travel, though these ordinances are effectively impossible to enforce and are solely meant to intimidate potential, traveling abortion seekers and their helpers. In Alabama, abortion funds have been unable to help callers because the state’s attorney general has threatened to prosecute anyone who helps someone travel for the procedure.