The following article was originally published by KFF Health News on July 11, 2023.
Advocates who counsel and aid Idaho teenagers seeking abortion care filed suit Tuesday against Republican Attorney General Raúl Labrador in a bid to overturn the state’s abortion travel ban.
The travel ban, which took effect May 5, created the crime of “abortion trafficking,” punishable by a minimum of two years in prison. It forbids helping a person under 18 years old obtain abortion pills or leave the state for abortion care without parental permission.
The complaint, filed in federal court in Boise, Idaho, says the ban infringes on the right to interstate travel and on First Amendment rights to speak about abortion and “engage in expressive conduct, including providing monies and transportation (and other support) for pregnant minors traveling within and outside of Idaho.”
The suit also says the travel ban “lacks clarity” and “invites arbitrary enforcement,” raising the specter of traffic stops of girls of reproductive age, and infringes on the right of people to cross the border into neighboring states, including Washington, where minors can legally obtain abortion care without parental consent.
Wendy Heipt, senior reproductive health and justice counsel at Legal Voice, an advocacy group representing the plaintiffs, said Idaho’s law prohibits “recruiting or harboring a minor, but what constitutes recruiting? Giving information? You can’t stop [my clients] from providing information about conduct that is legal in another state.”
She added, “If we want to give money to a minor to go to another state, we should be able to do that.”
In a statement, Idaho’s Office of the Attorney General said, “While we don’t comment on pending litigation, our office is always prepared to vigorously defend the constitutionality of statutes duly passed by the legislature.”
Legal experts say the ban, based on a model bill written by National Right to Life, one of the country’s largest anti-abortion groups, is drafted to sidestep implied constitutional protections for interstate travel.
“This National Right to Life proposal was designed to chip away at travel in a way that is less politically and legally risky,” said Mary Ziegler, a professor of law at the University of California-Davis and an abortion historian. “It’s easier to package this as a Republican parental rights initiative, and it’s easier legally because courts have been willing to countenance limits on minor rights that they wouldn’t countenance on adults.”
She added, “The idea is to stop people from traveling to other states,” and teen travel bans “could be a steppingstone to limit an adult’s right to travel.”
The plaintiffs include the Indigenous Idaho Alliance, a nonprofit that has helped pregnant minors access abortion care outside the state; the Northwest Abortion Access Fund, which provided financial assistance to 166 Idahoans in 2022, including 18 minors; and Lourdes Matsumoto, an attorney who works with victims of domestic and sexual violence, many of whom are minors.
Domestic violence advocates “don’t know what advice they can give people,” Matsumoto said. “In the shelters, they are confused about what information they can and cannot give out without putting themselves in legal jeopardy.” She said the teen travel ban has had a chilling effect on her work with teenagers dealing with the trauma of sexual assault.
Idaho’s law, the first in the nation to describe “abortion trafficking,” requires a minimum two-year prison sentence for any adult who acts “with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor.”
But Matsumoto, who has two teenage nieces, said the law fails to detail what constitutes parental consent. “If my niece comes to me and says, ‘My mom says this is OK; can you take me to Oregon?’ — is that enough that the mom consented? Am I going to have to come back, get arrested, lose my law license, then go to court and say, ‘The mom said it’s OK’? Is it a nod? A thumbs-up in a text message?”
Courts are usually suspicious of laws that are overbroad and vague, said I. Glenn Cohen, a Harvard Law School professor. But he said abortion bans around the country, including Idaho’s teen travel ban, have been written in a “fuzzy” way so that they “will deter ever more conduct because people don’t know where the line is.”
The lawsuit cites a legal opinion dated March 27 from Labrador that “stated that medical professionals who refer pregnant patients across state lines for either medical or chemical abortions violate Idaho’s Total Abortion Ban,” a separate law that went into effect after the Supreme Court overturned federal abortion rights last year in Dobbs v. Jackson Women’s Health Organization. Labrador withdrew the opinion on April 7, facing a legal challenge over constitutional rights of speech and movement.
“It is unconstitutional to forbid citizens from traveling because you disapprove of the reasons they are driving to another state,” Heipt said. “Idahoans, like all people, should be free to travel within and between states without the specter of prison, even if they are traveling for a reason other people disagree with.”
Idaho patients, including teenagers, have long crossed into Washington state to legally end their pregnancies. But fewer than 5% of patients at Planned Parenthood clinics in Washington who come for abortion care are minors, according to Karl Eastlund, CEO of Planned Parenthood of Greater Washington and North Idaho.
Most of those patients, he said, do involve their parents in the process, even though parental consent is not mandatory in Washington. Those who don’t, Eastlund said, have good reason not to. Some are in dangerous, abusive situations in which disclosing a pregnancy could put them at risk of further harm.
The lawsuit in Idaho cites Associate Justice Brett Kavanaugh’s concurring opinion in Dobbs, in which he claimed states could not bar residents from going to other states for abortions.
“May a State bar a resident of that State from traveling to another state to obtain an abortion?” Kavanaugh wrote. “In my view, the answer is no based on the constitutional right to interstate travel.”
But Kavanaugh represents only one vote on the court, Cohen said, and “it remains to be seen what the other justices have to say on the matter.”
Rather than settle the question of whether states can prohibit traveling for an abortion, Heipt said, “Dobbs unleashed chaos. What’s next?”
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