Idaho Abortion Trafficking Ban Mostly Allowed to Take Effect (1)

Idaho can mostly enforce its first-in-the-nation abortion trafficking ban, minus a section that prohibits individuals from giving minors truthful, not misleading information about abortion, a federal appeals court said Monday.

The provision’s “recruiting” prong likely is an unconstitutional, overly broad regulation that “prohibits a substantial amount of protected expressive speech relative to its plainly legitimate sweep,” the US Court of Appeals for the Ninth Circuit said. This prong, however, can be removed from the rest of the provision—allowing enforcement of the rest of the law—because it’s “neither integral nor indispensable” to the measure’s operation, the court said.

“Overall, , we are pleased with the court’s decision and looking forward to continuing to litigate the case,” said Wendy Heipt, senior reproductive health and justice counsel at LegalVoice, which represented the plaintiffs.The court’s ruling on the recruitment prong is a “signigicant victory for the plaintiffs,” she said.

“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.

The law threatens criminal prosecution for adults for “trafficking” minors, defined as recruiting, harboring, or transporting minors for the purpose of procuring an abortion with the specific intent to conceal it from their parents. A district court halted its enforcement, but the appeals court vacated the injunction as applied to the harboring and transporting sections.

Harboring and transporting minors involve nonexpressive conduct that wouldn’t be protected by the First Amendment, Judge M. Margaret McKeown said.

The court also said the law wasn’t overly vague. The case now goes back to the district court for trial.

Idaho Attorney General Raúl Labrador (R) called the decision “a tremendous victory for Idaho and defending the rule of law as written by the people’s representatives.” The provision was intended to protect the lives of both the unborn child and the mother, he said.

“Trafficking a minor child for an abortion without parental consent puts both in grave danger,” Labrador said.

Judge John B. Owens joined the majority decision.

Judge Carlos T. Bea dissented in part, saying that the plaintiffs failed to establish standing because they sued only Labrador, who has no authority to enforce the provision unless any of the state’s 44 county prosecutors refuses to do so. Bea would have reversed the district court’s injunction in full.

Abortion is mostly illegal in Idaho, and the state was the first to enact a law that—while not actually prohibiting anyone from traveling to another state to have an abortion—makes it difficult for reproductive rights advocates to get the message to the state’s teenagers that abortions are still available elsewhere.

The law’s proponents said it’s necessary to protect parents’ rights to direct their children’s health care and to prevent adults from taking advantage of vulnerable teenagers. Abortion rights advocates say the law is, in fact, a travel ban that would violate provisions of the US Constitution that protect the right to interstate travel.

Tennessee was the second state to enact an abortion trafficking law when Gov. Bill Lee (R) signed the bill May 29. Abortion helpers there challenged the provision, and recently asked a federal district court to grant summary judgment in their favor.

The Idaho Attorney General’s Office represents the state. Stoel Rives LLP and Lawyering Project also represent groups that said the law targets them.

The case is Matsumoto v. Labrador, 9th Cir., No. 23-3787, 12/2/24.