By Brendan Pierson
(Reuters) – Idaho can enforce a first-of-its-kind “abortion trafficking” law against those who harbor or transport a minor to get an abortion out of state without parental consent, a federal appeals court ruled on Monday.
However, the San Francisco-based 9th U.S. Circuit Court of Appeals blocked a part of the law that prohibits “recruiting” a minor to get an abortion.
Idaho, which bans abortion in nearly all cases, passed its abortion trafficking law in 2023. The law made “recruiting, harboring, or transporting” a minor with the intention of helping her get an abortion and conceal it from her parents or guardians a crime punishable by two to five years in prison.
Lourdes Matsumoto, a lawyer and advocate who works with victims of sexual violence, and two groups that support abortion rights sued the state to challenge the law soon after it was passed.
They argued that the law violated their right to free speech under the First Amendment of the U.S. Constitution, and that the threat of prosecution prevented them from counseling minors seeking abortions.
Circuit Judge M. Margaret McKeown wrote for the majority that harboring and transporting were not speech, partly reversing a lower court order that had blocked the entire law.
However, she wrote that recruiting could include “a large swath” of speech protected by the First Amendment, “from encouragement, counseling, and emotional support; to education about available medical services and reproductive healthcare; to public advocacy promoting abortion care and abortion access.”
McKeown said that, while speech can be restricted if it is part of a crime, it is not a crime for a resident of Idaho to get an abortion in a state where it is legal.
“Idaho’s asserted police powers do not properly extend to abortions legally performed outside of Idaho,” she wrote.
Idaho Attorney General Raul Labrador in a statement called the ruling “a tremendous victory.”
“Idaho’s laws were passed specifically to protect the life of the unborn and the life of the mother,” he 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 lawyer for the plaintiffs did not immediately respond to a request for comment.
McKeown was joined by Circuit Judge John Owens. Both were appointed by Democratic presidents. Circuit Judge Carlos Bea, an appointee of Republican former president George W. Bush, dissented, saying that the entire challenge to the law should be dismissed because the plaintiffs sued Labrador rather than the local prosecutors tasked with enforcing the law.
Idaho bans almost all abortions, with narrow exceptions to save the mother’s life and for rape or incest that is reported to police. However, it borders Washington, Oregon and Montana, which have much more permissive abortion laws.
More than 20 Republican-led states have banned or restricted abortion since the U.S. Supreme Court in 2022 reversed Roe v. Wade, its 1973 precedent that had established a right to abortion nationwide.
(Reporting By Brendan Pierson in New York, Editing by Alexia Garamfalvi and Bill Berkrot)
