Appeals court allows Idaho to enforce its ‘abortion trafficking’ law

Editor’s note: This story has been updated to include a statement from the attorney representing the plaintiffs. 

A panel of federal judges on 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 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.

Matsumoto, an attorney who assists victims of domestic and sexual violence in southwestern Idaho, including minors, was the first named plaintiff in the lawsuit. Her work includes representing victims of sexual violence who become pregnant, and Matsumoto said she now feels limited in what advice she can give to her clients, the Idaho Capital Sun previously reported. 

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.

Plaintiffs and state of Idaho see victories

Wendy Heipt, an attorney representing the plaintiffs, told the Idaho Capital Sun that overall she is pleased with the partial block of the law and is looking forward to continuing to litigate the case. 

“As the court noted, ‘encouragement, counseling, and emotional support are plainly protected speech,’ even when that speech happens in the ‘context of deciding whether to have an abortion,'” Heipt said in a press release. “This decision is a significant victory for the plaintiffs, as it frees Idahoans to talk with pregnant minors about abortion health care.”

The plaintiffs have two weeks to decide if they want to appeal the Ninth Circuit ruling, but if not, it will return to district court so the case can proceed.

Idaho Attorney General Raúl Labrador also said in a press release that the ruling is a “tremendous victory for Idaho and defending the rule of law as written by the people’s representatives.”

“Idaho’s laws were passed specifically to protect the life of the unborn and the life of the mother,” Labrador said. “Trafficking a minor child for an abortion without parental consent puts both in grave danger, and we will not stop protecting life in Idaho.”

A recap: 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.

States Newsroom reproductive rights reporter, Kelcie Moseley-Morris, contributed to this story.