Ninth Circuit sides with Idaho 'abortion trafficking' law
FILE - An attendee at Planned Parenthood

A person at Planned Parenthood’s Bans Off Our Bodies rally for abortion rights in downtown Boise, Idaho, on May 14, 2022, holds a sign. (Photo by Sarah A. Miller/Idaho Statesman via AP, File)

A federal appeals court substantially resurrected Idaho’s “abortion trafficking” law that makes it a crime to help a minor cross state lines for an abortion without parental consent.

In 2023, Idaho adopted HB 242, which created the crime of “abortion trafficking” as follows:

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 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.

Idaho also prohibits nearly all abortions, with just a few narrow exceptions to save a mother’s life and for rape or incest that is reported to police. Washington, Oregon and Montana — states that border Idaho — all protect the right to have an abortion.

Lourdes Matsumoto, an attorney who works with victims of sexual violence, along with two advocacy groups, challenged the law on First Amendment grounds, arguing that it unduly limits free speech and association. In the lawsuit, Matsumoto named Idaho Attorney General Raúl Labrador as the sole defendant.

U.S. Magistrate Judge Debora Grasham ruled in November 2023 that the law indeed violates the First Amendment as an unconstitutional restriction on free speech. Grasham said that speaking, advocating, and fundraising to help individuals understand their reproductive options is “inherently protected speech,” and Grasham struck down the law as unconstitutionally vague.

Lawyers for the state of Idaho appealed Grasham’s ruling and argued that the law is not a restriction on speech, but rather, a prohibition against “strange adults” who are “recruiting, harboring or transporting” minors within the state to get an abortion.

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