Idaho Abortion ‘Trafficking’ Ban Gets Halted by Federal Judge

Idaho can’t enforce a law that makes it illegal for reproductive rights advocates to help underage people get abortions without their parents’ consent, a federal court said.

In separate opinions Wednesday, Magistrate Judge Debora K. Grasham, of the US District Court for the District of Idaho, granted a preliminary injunction against the state and mostly denied its motion to dismiss the suit.

Idaho’s law represents an aspect of the abortion question that’s been getting a lot of attention lately—whether states that have banned the procedure within in their own borders can prevent people from traveling to states where it’s still legal to end a pregnancy before viability.

This case, however, isn’t about abortion, Grasham said. It’s about “long-standing and well recognized fundamental rights of freedom of speech, expression, due process, and parental rights,” she said.

Idaho can criminalize abortion, kidnapping, and human trafficking, Grasham said. But it can’t “craft a statute muzzling the speech and expressive activities of a particular viewpoint with which the state disagrees under the guise of parental rights,” she said.

The state’s lawmakers attempted to frustrate groups that try to help minors get abortions by characterizing their provision as an “abortion trafficking” statute.

But “abortion trafficking is not a thing,” because the procedure is still legal in other states, Grasham said, quoting the helpers’ argument in her order on the state’s motion to dismiss.

Likely to Succeed

Plaintiffs Lourdes Matsumoto, Northwest Abortion Access Fund, and Indigenous Idaho Alliance are likely to succeed on their First Amendment free speech and 14th Amendment vagueness claims, Grasham said.

The law prohibits the plaintiffs from “engaging in expressive activities that are at the very core of their beliefs, mission, and messages,” Grasham said. The law is content-based, because it clearly targeted certain speech and expression, she said.

The law wasn’t narrowly tailored to serve a compelling state interest because it swept in a “wide swath” of protected activities, Grasham said, applying strict scrutiny to the law.

The plaintiffs demonstrated a colorable claim that they fear criminal prosecution under the law, the judge also said.

They’ve engaged in the past in activities that the law criminalizes and have said they would like to do so in the future, but the law effectively mutes them, she said.

Grasham also said the plaintiffs were likely to succeed on their claim that the law is unconstitutionally vague. It doesn’t provide reasonable people with fair notice of what it prohibits versus what activities are lawful, and allows for arbitrary enforcement, she said.

Travel Rights

Grasham also allowed the plaintiffs to proceed on their claim that the provision violates their interstate travel rights. The fundamental right to leave or enter a state is guaranteed by the US Constitution, she said.

But the judge dismissed the plaintiffs’ claim that the law violates a right to intrastate travel, saying that neither its governing federal appeals court nor the US Supreme Court has recognized this right.

The plaintiffs sued Idaho Attorney General Raúl Labrador in July.

A similar suit is pending in the US Court of Appeals for the Ninth Circuit over an opinion letter in which Labrador said that the doctors advising patients on how to get abortion care outside Idaho could be prosecuted under the state law’s aiding and abetting provision.

Stoel Rives LLP, the Lawyering Project, and Legal Voice represent the plaintiffs. The Idaho Attorney General’s Office represents the defendant.

The case is Matsumoto v. Labrador, D. Idaho, No. 23-323, preliminary injunction 11/8/23.