Idaho sued over abortion law

A Pacific Northwest advocacy group Tuesday filed a lawsuit against Idaho in U.S. District Court challenging the recently enacted “abortion trafficking” law.

Idaho was the first state in the nation to pass this kind of ban, which makes it a felony for an adult to take a minor across state lines for an abortion without parental consent.

Legal Voice and other groups contend that the law violates the First and 14th amendments and the right to travel within and between states.

Attorneys from Legal Voice, Stoel Rives and the Lawyering Project are representing the Northwest Abortion Access Fund, the Indigenous Idaho Alliance and Lourdes Matsumoto.

Matsumoto is an Idaho attorney who works with victims of domestic and sexual violence, including minors. She previously said she and other advocates were unsure of what kind of information or assistance they could provide pregnant minors.

Violation of the law is a felony punishable by two to five years in prison.

The organizations and Matsumoto who are plaintiffs in the lawsuit have “long histories of serving as trusted adults for minors who find themselves pregnant,” the lawsuit states. “They associate with pregnant minors as a show of solidarity, communicating a message to minors who find themselves pregnant. That message is often that minors are not alone. Plaintiffs’ support also communicates a message to those who may seek to isolate and abuse minors that these minors will have the support of trusted adults.”

HB 242 passed during the 2023 legislative session on near party-line margins. It was originally sponsored by Rep. Barbara Ehardt, R-Idaho Falls. Ehardt said she feels confident the law will be upheld.

“It’s absolutely no surprise to me that a lawsuit would be filed by those who do not value the life of the preborn,” Ehardt said. “This piece of legislation is a parental rights bill. The arguments I’m seeing … such as referencing the 14th and First Amendment, absolutely have nothing to do with this legislation. No one has a right to take a child without the permission of the parent to go anywhere. In layman’s terms we call that kidnapping.”

The bill amended Idaho’s existing abortion ban, defining “abortion trafficking” as when “an adult who, with the intent to conceal an abortion from parents or guardian of a pregnant, unemancipated minor, either procures an abortion … or obtains an abortion-inducing drug for the pregnant minor to use for an abortion by recruiting, harboring, or transporting the pregnant minor within the state.”

The law provides an affirmative defense if the parents or guardians provided consent, although there is no true exemption.

House Minority Leader Rep. Ilana Rubel, D-Boise, said the bill “is opening a terrifying Pandora’s box.”

“This is a real camel’s nose under the tent of dangerous, dangerous government overreach in areas that go beyond abortion,” Rubel said.

She said by the logic used for the law, the state could penalize people who drive to Oregon or Washington to smoke marijuana in those states, even though it’s legal there, or those who drive to Las Vegas to gamble.

The lawsuit argues that the law violates the constitutional right to travel freely among and across states.

“The law is so uncertain that Plaintiffs cannot tell if it is criminal to operate a motor vehicle on the streets and highways of Idaho because a pregnant minor is in the car, and Plaintiffs’ own rights to travel are implicated and effectively chilled,” the court document says.

Wendy Heipt, senior reproductive health and justice counsel at Legal Voice, said in a written statement, “Idaho’s law is the first time a state has tried to criminalize the right to travel for health care. It is unconstitutional to forbid citizens from traveling because you disapprove of the reasons they are driving to another state. 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. If this stands, what is next?”

Gov. Brad Little, when he signed the bill into law, wrote in his letter explaining his decision that the law “does not criminalize, preclude or otherwise impair interstate travel, nor does it limit an adult woman from obtaining an abortion in another state. Rather, the ‘abortion trafficking’ provision in the bill seeks only to prevent unemancipated minor girls from being taken across state lines for an abortion without the knowledge or consent of her parent or guardian.”

The lawsuit also argues that the law is vaguely written and thus violates the 14th Amendment’s due process guarantee because it does not provide ordinary people fair notice of what conduct may be in violation of the law.

Rubel said the definitions of “harboring” or “recruitment” in the law are too vague. She said it’s a question if assisting someone who’s recovering from an abortion would be in violation or if providing information would be “recruitment.”

“If you’re going to criminalize something, you need to be crystal-clear about what you’re criminalizing,” Rubel said.

Additionally, the legal challenge contends that the ban violates the First Amendment right to “associate freely with each other and with pregnant Idahoans, to provide information, and to engage in expressive conduct, including providing funding or practice support for pregnant Idahoans traveling to access out-of-state services that are legal where rendered, including abortion.”

The lawsuit is asking the court to declare the law unconstitutional and stop the attorney general from enforcing the ban.

Legal Voice is based in Seattle and advocates for women and LGBTQ people against gender discrimination, according to its website. Stoel Rives is a corporate and litigation law firm with offices in seven states that’s headquartered in Portland, Ore. The Lawyering Project is an abortion-rights legal advocacy group based out of New York.

Guido covers Idaho politics for the Lewiston Tribune, Moscow-Pullman Daily News and Idaho Press of Nampa. She may be contacted at lguido@idahopress.com and can be found on Twitter @EyeOnBoiseGuido.