Idaho Can’t Enforce Abortion ‘Trafficking’ Ban During Appeal

Idaho’s top attorney has lost a bid to enforce a law that bars doctors and others from helping minors get legal abortions in other states during an appeal of an order blocking it.

Attorney General Raúl Labrador (R) didn’t show that the state will be irreparably harmed by the order, which prohibits prosecuting alleged offenders while the case proceeds in a federal appeals court, Magistrate Judge Debora K. Grasham, of the US District Court for the District of Idaho, said Thursday.

Labrador, not the state, is the defendant in the case challenging a law he says bans abortion “trafficking.” He argued that he’s likely to succeed on appeal because he has immunity from prosecution under the US Constitution’s Eleventh Amendment.

The evidence presented by plaintiffs Lourdes Matsumoto, Northwest Abortion Access Fund, and Indigenous Idaho Alliance, however, showed that Labrador “has a sufficiently direct connection with” the law’s enforcement that he is not entitled to Eleventh Amendment immunity, Grasham said.

Labrador’s “disgreement” with that ruling didn’t create irreparable harm, Grasham said.

Other factors weighed in favor of denying Labrador’s motion to stay of the injunction pending appeal, Grasham said. For example, the plaintiffs demonstrated that they were likely to succeed on their First Amendment free speech and 14th Amendment vagueness claims, she said.

Being blocked from enforcing a statute that’s been shown to likely violate the Constitution didn’t irreparably harm Idaho, Grasham said.

Abortion is illegal in Idaho, with limited exceptions for victims of rape or incest and for certain medical conditions.

At issue here was a law that makes it illegal for reproductive rights advocates to help underage people get legal abortions in other states without their parents’ consent. Idaho says the law bars abortion trafficking, not abortion.

But “abortion trafficking is not a thing,” because the procedure is still legal in other states, Grasham said in her Nov. 8. 2023, decision. Idaho can criminalize abortion, kidnapping, and human trafficking, 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.

Labrador has taken the case to the US Court of Appeals for the Ninth Circuit, where he argued Dec. 20 that the suit should have been dismissed based on sovereign immunity. The plaintiffs’ response brief is due Jan. 17.

The case is Matsumoto v. Labrador, D. Idaho, No. 23-cv-323, stay pending appeal denied 1/4/24.