A federal appeals court on Monday upheld Idaho’s first-in-the-nation abortion trafficking law, which bars adults from helping pregnant minors obtain abortions in other states without their parents’ knowledge or consent.
A three-judge panel for the U.S. Court of Appeals for the Ninth Circuit reversed a lower court order from November 2023 blocking enforcement of the law and remanded the case for further proceedings. The lawsuit was brought by Idaho attorney Lourdes Matsumoto, Northwest Abortion Access Fund, and the Indigenous Idaho Alliance, who alleged the law restricts their freedom of speech, the right to travel, and the right to freely associate. They further argued the law is too vague to be constitutional.
The panel largely upheld the law, allowing the portion of the statute that outlaws the “harboring” and “transporting” of minors for secret abortions to stand. However, the judges held that the law’s language prohibiting “recruiting” minors for abortions is unconstitutional “because it prohibits a substantial amount of protected expressive speech.”
“Because Challengers are not likely to succeed on the merits of their remaining claims—the void-for-vagueness and association claims, as well as the other First Amendment claims with respect to the remainder of the statute—we reverse the district court with respect to those claims and remand to the district court to modify the preliminary injunction consistent with this opinion,” Judge Margaret McKeown wrote for the panel.
Idaho Attorney General Raúl Labrador celebrated the ruling, calling it a “tremendous victory.”
“This is a tremendous victory for Idaho and defending the rule of law as written by the people’s representatives,” Labrador said in a statement. “Idaho’s laws were passed specifically to protect the life of the unborn and the life of the mother. Trafficking a minor child for an abortion without parental consent puts both in grave danger, and we will not stop protecting life in Idaho.”
Wendy Heipt, an attorney representing the plaintiffs, told the Idaho Capital Sun that she is encouraged by the partial block of the law and looks forward to future litigation of 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. “This decision is a significant victory for the plaintiffs, as it frees Idahoans to talk with pregnant minors about abortion health care.”
In Idaho, abortion is outlawed at every stage of pregnancy, with exceptions for rape and incest up to 12 weeks of pregnancy with a police report documenting the crime. Idaho is surrounded by several states that allow abortion throughout pregnancy, including Washington, Oregon, and Montana. Washington does not require parental consent for minors to obtain abortions, and girls under the age of 14 must have parental consent in Oregon.
Idaho Gov. Brad Little (R) signed the abortion trafficking bill, HB 242, into law in April of 2023.
The bill defines “abortion trafficking” as: “an adult who with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion, as described in section 18-604, 18 Idaho Code, 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.”
Anyone guilty of trafficking a minor for an out-of-state abortion would face two to five years in prison.
The case is Matsumoto, et al. v. Labrador, No. 23-3787 in the U.S. Court of Appeals for the Ninth Circuit.
Katherine Hamilton is a political reporter for Breitbart News. You can follow her on X @thekat_hamilton.