While some abortion access advocates viewed this week’s ruling by the 9th U.S. Circuit Court of Appeals in a case over so-called “abortion trafficking” as another grim development in their fight against anti-abortion laws, plaintiffs’ representatives say it is a clear victory in the current case.
A panel of three appeals judges issued a motion Opinion On Monday, part of the injunction blocking enforcement of Idaho’s abortion trafficking law, which went into effect in 2022, was lifted. The law comes from House Bill 242 and states that an adult who assists a minor in procuring or obtaining an abortion by “recruiting, harboring, or transporting” the minor without the permission of the parent or guardian may be charged with a felony and subject to a prison term of two to five years must be expected. This includes those leaving a state where the procedure is legal, such as Oregon, Washington and Montana. Idaho is the only state in the Northwest with a near-total ban on abortion.
The appeals panel said Idaho can enforce the law regarding the “accommodation or transportation” of a minor, but it cannot prosecute people who merely provide information about where an abortion can be performed or who make other types of financial or logistical concerns Providing support for abortion abortion where it is legal. According to the court, these activities could have fallen under the “recruitment” part of the law.
Plaintiffs’ attorney Wendy Heipt said the ruling is particularly significant because it ensures people can give minors precise information about their options. The minors who need that facilitate the most are often the most vulnerable, she said, such as those with abusive caregivers.
“This is the first case at this level to recognize this right, and it is a major victory,” Heipt said.
Laws written with language similar to HB 242 were signed into law in Tennessee earlier this year, albeit with a judge blocked its implementation in September with an injunction. This case is ongoing. Also lawmakers in Alabama, Mississippi and Oklahoma introduced similar laws in 2024 that couldn’t move forward, and that The New Hampshire Bulletin reported this A Republican state representative filed a similar bill ahead of the 2025 legislative session.
Part of the case over the right to interstate travel remains to be resolved
Idaho Attorney General Raúl Labrador said in a statement Monday that the decision was a “tremendous victory for Idaho.”
“Idaho’s laws were specifically enacted to protect the life of the unborn and the life of the mother.” he said. “Trafficking a minor child for an abortion without parental consent puts both at great risk, and we will not stop protecting life in Idaho.”
He noted that the justices decided to lift portions of the injunction because they believed the plaintiffs were unlikely to succeed in court, which he saw as a positive sign for the state’s case.
Idaho attorney Lourdes Matsumoto and two advocacy groups, the Northwest Abortion Access Fund and the Indigenous Idaho Alliance, filed the lawsuit in July 2023. Matsumoto and advocacy staff said the law affects their ability to provide counseling to minors facing unplanned pregnancies, including any financial or logistical facilitate in obtaining abortion in another state.
U.S. 4th District Court Judge Debora K. Grasham issued the injunction in November 2023, and Labrador appealed to the regional district court, which found that the injunction could only affect the “recruitment” aspect of the law.
Heipt, of the equality organization Legal Voice, said the 63-page ruling had several huge benefits for her, including confirmation that the groups had the right to sue, that the attorney general was the right defendant and that the recruitment part of the statute is unconstitutionally broad.
Heipt said that while some viewed the ruling as confirmation that Idaho could restrict interstate travel through the law, that part of the law has not yet actually been discussed in court and is not part of the injunction or the district court’s opinion.
“This is a first step. We haven’t had a full day in court, nor have we had a chance to explain the third point of our argument (on) interstate travel,” she said. “That’s coming and I’m looking forward to it.”
Planned Parenthood Idaho officials call decision ‘devastating’
Judge Margaret McKeown, the lead author of the 9th Circuit opinion appointed by former President Bill Clinton, wrote that the recruiting portion of the law was broad enough that it presented potential conflicts with the First Amendment right to free speech. The judge said courts have assumed that protesters who try to stop people from entering abortion clinics are also protected by free speech laws.
“Even statements of persuasive encouragement could be subject to prosecution under the law,” McKeown wrote. “Imagine an Idaho resident living near the Oregon border wearing a bumper sticker that says, ‘Legal abortions are OK, and they’re right next door.’ Ask me about it!’ A minor sees the sticker and frantically approaches the driver and asks him for a ride across state lines.”
In this case, the driver could be prosecuted for “solicitation” if he offered the compact sum of cash for the procedure. McKeown added that the language also appears to include the possibility of legal abortion in Idaho under one of a few exceptions, including rape and incest.
“That is, an adult concerned about the well-being of a minor incest victim would be prohibited from counseling that victim and then assisting that victim in obtaining an abortion without informing a parent — who may be the perpetrator,” wrote McKeown.
Other stakeholders such as Planned Parenthood Great Northwest Hawaii, Alaska, Indiana, Kentucky called the decision “devastating.”
Mistie DelliCarpini-Tolman, state director of Planned Parenthood Alliance Advocates in Idaho, said the law has had a massive chilling effect on Idahoans and the ruling is unlikely to change that problem.
“We hear from Idahoans in restaurants who find out you work for Planned Parenthood and say, ‘If I go to Oregon for an abortion and come back to Idaho, will I be arrested?'” DelliCarpini-Tolman said. “These laws and the way they work together are confusing to the average Idahoan, and it is important to note that they are intended to create this chilling effect.”
DelliCarpini-Tolman added that data from an organization called Jane’s Due Process in Texas found that more than a third of newborn women seeking abortions there said they feared physical, emotional or sexual abuse if their parents would find out about her pregnancy.
“The numbers are there, they don’t lie, they show us the situation we’re putting young people in in Idaho,” she said. “For the bill’s proponents to act as if they want to protect young Idahoans is utter hypocrisy, because those are the very people the bill will harm the most.”
Both sides may appeal the ruling, saying they are weighing their options
Wendy Olson, an Idaho-based attorney who also represents the plaintiffs, said both sides have two weeks to appeal the decision to the 9th Circuit and her clients are still weighing their options. Dan Estes, spokesman for Labrador’s office, told States Newsroom that they are also considering their next step, which could be asking the U.S. Supreme Court to review the case.
If neither side appeals, the case will go to district court for a full trial, but it is unclear when that hearing will take place. Given the justices’ comments about their likelihood of winning the case, Olson said they expect to spend time developing more evidence to bolster their arguments for their day in court.
