Federal judge halts Idaho’s abortion trafficking ban
(CN) — Idaho’s abortion trafficking ban was put on pause Wednesday after a federal judge granted a temporary restraining order against the controversial law while largely denying the state’s attempt to dismiss its underlying challenge.
Idaho legislators passed House Bill 242, or the “abortion trafficking ban,” in March 2023, criminalizing any adult who assists a minor in obtaining abortion medication or a lawful abortion out of state without parental consent. Anyone found guilty of helping minors without their parent’s or guardian’s consent would face two to five years in prison and could be sued by the minor’s legal guardians with limited exceptions.
State Representative Barbara Erhardt, a Republican from Idaho Falls, had proposed the bill as a “parental rights” bill, telling Idaho’s legislative committee that parents could still take their pregnant minor across state lines to receive an abortion. The purpose of HB242, Erhardt said, is to punish those who do so without a parent’s consent and to protect minors in abusive relationships or from pressure to receive abortions.
As a result, HB 242 made Idaho one of the most restrictive U.S. states for access to reproductive services given the state’s total abortion ban following the U.S. Supreme Court’s overturning of Roe v. Wade. The fate of that law is currently under review from the Ninth Circuit Court of Appeals after a three-judge panel of Donald Trump appointees ruled in September that Idaho could enforce the law.
In July 2023, Idaho attorney Lourdes Matsumoto joined Northwest Abortion Access Fund and Indigenous Idaho Alliance in suing Idaho Attorney General Raúl Labrador over HB 242, claiming that the law is unconstitutionally vague while infringing on their rights to interstate and intrastate travel and suppressing their First Amendment rights to freedom of speech, assembly, association and petition.
All three plaintiffs assist pregnant women, including minors, in obtaining legal abortion care outside of Idaho.
“Idaho Attorney General Raúl Labrador has made clear that he is willing to enforce Idaho criminal abortion statutes even where any abortion occurs in another state,” the plaintiffs wrote in the complaint, citing a now-rescinded legal opinion Labrador wrote in March at the request of state Representative Brent Crane, a Republican from Nampa, Idaho.
In Labrador’s analysis, he asserted Idaho’s ban not only criminalizes abortion within the state but also prohibited an Idaho medical provider from referring a woman across state lines to access abortion services. This prompted organizations like Planned Parenthood to decry Labrador’s interpretation of law, stating that it threatens medical providers’ freedom of speech while violating due process and the commerce clause by criminalizing lawful abortion care provided outside the state.
Following a hearing for Labrador’s motion to dismiss in September, U.S. Magistrate Judge Debora K. Grasham found that three of the plaintiff’s four constitutional claims were plausible, granting them a temporary restraining order to preliminarily prevent Labrador from enforcing the law until further notice.
“The state can, and Idaho does, criminalize certain conduct occurring in its own borders such as abortion, kidnapping and human trafficking,” Grasham wrote in the injunction order on Wednesday. “What the state cannot do is craft a statute muzzling the speech and expressive activities of a particular viewpoint with which the state disagrees under the guise of parental rights, as Idaho Code Section 18-623 does here.”
Grasham added that the state cannot enact criminal laws “so unconstitutionally vague that ordinary individuals, including the proponents of the legislation themselves, are without fair notice of what conduct is proscribed and that subjects individuals to arbitrary enforcement.”
More specifically, Grasham points to how the statute fails to define what is and is not abortion trafficking, writing that the terms “recruiting, harboring or transporting” are “undefined, overbroad and vague, making it impossible for a reasonable person to distinguish between permissible and impermissible activities.”
To that point, Grasham cites the plaintiffs’ arguments in her order for Labrador’s motion to dismiss that “abortion trafficking is not a thing” because abortion is legal outside of Idaho.
Grasham writes, “That the abortion trafficking statute criminalizes lawful activity and, even more egregious, proscribes constitutionally protected activity, makes it wholly different from the other criminal statutes defendant attempts to liken it to,” such as human and sex trafficking.
Where the judge disagreed with the plaintiffs was whether the law violated their right to intrastate travel or freedom of movement.
“While the court does not find plaintiffs’ intrastate travel claim is brought in bad faith or frivolous given the caselaw from other circuits, there is simply no authority in this circuit at this time upon which to recognize a liberty interest in the right to intrastate travel, let alone a fundamental right,” Grasham wrote. “For this reason, the court will grant defendant’s motion and will dismiss the third claim for relief.”
Representatives for the plaintiffs and the attorney general did not immediately respond to a request for comment on the rulings.