BOISE, Idaho — A federal judge has temporarily blocked enforcement of Idaho’s “abortion trafficking” law while a lawsuit challenging its constitutionality proceeds.
“This lawsuit is not about the right to an abortion. It is about much more,” wrote U.S. District Magistrate Debora K. Grasham in Wednesday’s ruling. “Namely, the long-standing and well-recognised fundamental rights of free speech, free expression, due process, and parental rights. These are not competing rights, nor are they in conflict.”
Abortion is banned in Idaho at all stages of pregnancy, and the law passed in May was designed to prevent minors from obtaining abortions in states where the procedure is legal if they don’t have their parents’ permission. Under the law, people who help a minor who isn’t their own child arrange an abortion out of state can be charged with a felony, although they can later try to defend themselves in court by proving that the minor had parental permission for the trip.
Supporters of the law call it a ban on “abortion trafficking”. Opponents say it is an unconstitutional ban on interstate travel and free speech.
Two advocacy groups and an attorney who works with sexual assault victims sued the state and Idaho Attorney General Raul Labrador over the law earlier this year. Nampa attorney Lourdes Matsumoto, the Northwest Abortion Access Fund and the Indigenous Idaho Alliance all work with and sometimes assist minors seeking abortions, and they wrote in the lawsuit that they wanted to continue without the threat of prosecution.
They said the law was so vague that they couldn’t tell what conduct would or would not be legal, and that it violated the First Amendment right to free speech. They also argued that the law violated the Fourth Amendment right to travel between states, as well as the right to travel within Idaho.
Grasham agreed with the state’s attorneys that there is no court-protected right to travel within the state under existing Idaho case law, and she dismissed that part of the lawsuit. But she said the other three claims could go forward, noting that the plaintiffs’ intended assistance to minors was essentially an expression of their core beliefs, in the form of messages of “support and solidarity for individuals seeking legal reproductive options”.
The judge wrote that she wasn’t placing freedom of expression or due process above parental rights, or vice versa, and that these rights have coexisted in harmony for decades and can continue to do so.
“The state can, and Idaho does, criminalise certain conduct that occurs within its own borders, such as abortion, kidnapping, and human trafficking. What the state cannot do is create a law that, under the guise of parental rights, muzzles the speech and expressive activities of a particular viewpoint with which the state disagrees,” she wrote.
Prosecutors in eastern Idaho recently charged a woman and her son with second-degree kidnapping for allegedly taking the son’s underage girlfriend out of state to get an abortion. Prosecutors did not invoke the so-called “abortion trafficking” statute in this case. Instead, they said the kidnapping charge was brought because the mother and son intended to “keep or conceal” the girl from her parents by “transporting the child out of state for the purpose of obtaining an abortion”.
The woman’s defence attorney did not immediately return a phone call seeking comment. The son’s court record was not available online, and it wasn’t immediately clear whether the case against him was still pending.