Language of Idaho abortion law leaves some minors in the cold

BOISE — Idaho made national headlines this week when the governor signed into law the “abortion trafficking” bill, which will make it punishable by up to four years in prison to transport a minor across state lines for an abortion without parental consent.

HB 242’s sponsor, Rep. Barbara Ehardt, R-Idaho Falls, said it’s a parental rights bill. Some advocates for survivors of domestic violence and child abuse have concerns about the lack of exemption or affirmative defense for young people who might think it’s unsafe to disclose their pregnancy or abortion to their parents.

“Most often, the abusers, parents or trusted family friends, they’re the people that have power and control over them,” said Lourdes Matsumoto, director of law and policy at Idaho Coalition Against Sexual and Domestic Violence. “And this is only further emboldening the abusers with more power and control in order to hide their crimes and reduce the ability for those children to seek help.”

The bill includes an affirmative defense to adults who had permission from the minors’ parents.

The bill’s language was based on a model drafted by the National Right to Life in 2022, according to a news release from the organization. Ehardt said it shouldn’t be the job of a trusted adult to take a pregnant girl to get an abortion if she’s in an abusive home. She said the first step should be reporting the abuse to the police.

“The answer really is that we need to get them, as the person that they’ve confessed to, we need to get them to the police and get the proper help,” Ehardt said of situations where a minor may have been impregnated by a family member. “I believe that that’s a red herring, false narrative designed to take away from what the key issues are here.”

She also said that, while the trigger law banning abortions has exemptions for rape and incest with a police report; a bill that passed this session narrowed this exemption to within the first trimester of pregnancy.

However, Senate Minority Leader Melissa Wintrow, D-Boise, said the police report requirement and the time constraints on that exemption create a barrier that may be too burdensome for some survivors. She also noted that Idaho has another law that allows civil lawsuits to be brought against doctors who perform abortions after six weeks, and it would still allow family members of a rapist or someone who committed incest to sue.

“There is no rape exemption,” Wintrow said.

Wintrow created a program at Boise State University to support victims of sexual violence.

She said that, especially if the victim is a minor, they may not want to go to the police, because “they’re scared and they’re confused, and they’re traumatized.”

Matsumoto said in her work with young populations, there’s often a strong reluctance to go to law enforcement in these cases.

“There’s a lot of fear in that age group of reporting and what the ramifications are if they seek resources through the legal system,” Matsumoto said. “... It’s a deterrent, by creating all these different reporting laws and parental consent … they’re just further deterring minors who already aren’t seeking the help because they’re afraid of what the recourse could be.”

She said that sometimes the reluctance isn’t because the abuser is the parent, but because it’s someone trusted by the family and the child worries about the potential fallout of disclosing the pregnancy. Matsumoto said there can be misplaced shame and guilt among these survivors, or a concern they might not be believed, which can deter children from telling their parents.

“Incredibly overwhelmingly, the statistics show that victims of abuse are chosen by people who have trusted relationships,” she said. “... a lot of times, these people are so trusted, the parents may not even believe them over, let’s say it’s a pastor or somebody in that type of community.”

According to Merritt Dublin, an Idaho legal scholar on the issue of children’s rights, a lot of sexual assault is underreported. Some studies show as low as 23% of cases are reported, she said.

“Young women often feel shame and blame themselves particularly in situations with a known perpetrator like date rape — society often asks ‘How did you get yourself in that situation?’ instead of ‘Why did he do that to you?’ misplacing the blame on the victim,” Dublin wrote in an email. “These same feelings often arise in the case of an unwanted pregnancy. The minor may feel such shame that she is not able to tell her family, particularly in a community where she or the family may be judged for her actions. In those situations, a minor is more likely to reach out to a trusted adult.”

In the National Right to Life’s statement supporting the law, the organization noted that Missouri passed a law in 2005 that prohibits aiding a minor in getting an abortion without parental consent.

The Missouri law includes a judicial bypass option, in which the minor who is afraid or unable to get parental consent may ask a judge for an exception to the reporting requirement. It allows minors to demonstrate that they are mature enough to make the decision on their own.

Dublin, the legal scholar, noted that before Roe v. Wade was overturned, Idaho had a judicial bypass option for minors’ attempting to obtain an abortion.

“We did recognize that a minor could petition to the court to be established as having the maturity to make the decision, and it’s based on the fundamental right that a mentally competent person can make their own healthcare decision,” Dublin said.

In general, parents have the right to consent for medical treatment, she said. However, there are a number of exceptions to consent requirements. For instance, minors may obtain contraceptives and family planning information without parental consent, those 16 and older may receive treatment for drug abuse without parental consent, and those 14 or older may consent to their own mental health treatment.

The reasons children may not want to disclose their pregnancy to their parents might not always be related to abuse, Dublin said. It could be that they are afraid for the partner that got them pregnant or that they might be forced to carry the pregnancy to term.

“They could also be really afraid that, because of their families’ beliefs, that they won’t be able to make a decision about what they feel is in their best interest for the rest of their life,” Dublin said. “That may be a fear, is that they know what their family will say, and they don’t agree.”

Matsumoto said there could also be fears of getting kicked out of the home or being cut off financially.

“There’s a very real decision minors have to face, not only what are my options but what is the recourse if my parent is very much against whatever lifestyle I’m living, or whatever choices I’ve made,” Matsumoto said.

For people who might be trying to help these minors, the criminal penalties in the law are of great concern. Matsumoto said advocates are unsure of what kind of information, resources and services they can provide.

“It’s very, very scary for advocates, because you’re having to deal with these emergency situations and these are not legally trained individuals for the most part, so they don’t know,” she said. “ And so it’s putting everything on hold. Somebody might be coming in with an emergency situation ... and the advocates are having pause and say, ‘I don’t know what information I can give you.’”

Ehardt noted that parents may still transport their children or give permission for another adult to transport their child for a procedure to obtain abortion medication. She said it’s vital that the parents be involved in that decision.

“When we’re talking about a child that is pregnant, they need the help of the parent,” Ehardt said. “They need that family help to make that decision.”

Gov. Brad Little, in his transmittal letter when he signed the legislation, said, “Section 1 of House Bill 242 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.”

Little signed the law on Wednesday and it’s set to go into effect after 30 days.

The bill passed on near-party lines, with only Republican Reps. Rick Cheatum, Pocatello, and Dustin Manwaring, Pocatello, joining the Democrats in voting against it in the House, where it passed 57-12. It passed on a party-line 27-7 vote in the Senate.

Wintrow said the potential issues with requiring parental consent came up and were dismissed in testimony and debate on the bill.

“My colleagues are sometimes stuck in this ideological false world, where everything is black and white,” Wintrow said. “A bill like this continues to lack compassion and understanding that there are many challenges that people face, and you can’t create this cookie cutter-template, boilerplate bill that, basically, it shackles girls into worse scenarios and worse situations.”

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.