A federal appeals court this week permitted Idaho to enforce its "abortion trafficking" law, reviving most of a 2023 statute that criminalized recruiting, harboring or transporting a minor to help them access out-of-state abortion care without parental consent. While both parties to the lawsuit claimed a victory in the ruling, reproductive law scholars warned of the potential damage it could do to the fight for abortion rights across state lines.
Shortly after the "abortion trafficking" law was passed in 2023, lawyer and advocate Lourdes Matsumoto, alongside two pro-choice groups, filed a legal challenge opposing the statute and its penalty of two to five years in prison for any violation, per The Guardian. The challengers argued that the law violated their First Amendment right to free speech and that the potential of facing prosecution kept them from advising minors who sought abortion care.
The Ninth Circuit Court of Appeals' ruling, issued Monday, held that "harboring" and "transporting" do not constitute First Amendment-protected expressive speech, partially reversing a district court order that blocked the law. Meanwhile, the court also asserted that it is not a crime for an Idaho resident to obtain an abortion in a state where it is legal.
“Idaho’s asserted police powers do not properly extend to abortions legally performed outside of Idaho,” Judge M. Margaret McKeown wrote for the majority.
Rachel Rebouché, dean of Temple University's Beasley School of Law and a professor of reproductive health law, told Salon that while the Ninth Circuit's ruling was strong in declaring that Idaho couldn't bar its residents from seeking a legal abortion elsewhere, reviving it — even in part — will likely cause more harm.
"Upholding the parts of the law that allow Idaho to criminalize and punish people who harbor or transport — that is going to have a chilling effect," she said in a phone interview. "It's going to create confusion, and it's going to create fear."
"You've already seen women having to get [airlifted] out of the state for emergency care because the Idaho ban is so narrow, and a law like this just exacerbates the problem if states start to try to keep people from leaving at all," Rebouché added.
Still, both the state and the challengers considered the ruling a victory, with Idaho Attorney General Raúl Labrador — the defendant in the lawsuit — dubbing the ruling "a tremendous victory" and proclaiming that the state "will not stop protecting life in Idaho."
Wendy Heipt, an attorney for the challengers, called the ruling "a significant victory for the plaintiffs, as it frees Idahoans to talk with pregnant minors about abortion healthcare," according to a statement provided to The Guardian.
In the decision, the appellate court dismissed the challengers' claim that the language of the 2023 law was too unconstitutionally vague for it to be enforced while determining that the challengers' free speech claim would likely hold against the "recruiting" prong of the law. Recruiting, the court said, could include "a large swath" of constitutionally protected speech, “from encouragement, counseling and emotional support; to education about available medical services and reproductive healthcare; to public advocacy promoting abortion care and abortion access.
“Encouragement, counseling and emotional support are plainly protected speech under supreme court precedent, including when offered in the difficult context of deciding whether to have an abortion," McKeown wrote.
Rebouché said that, despite that concession, the opinion opens the door for similar laws to take hold in other states. The Ninth Circuit's ruling sets a precedent for other courts to allow such laws to stand in the face of similar legal challenges so long as they don't target the counseling of minors seeking information about abortion.
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Beyond keeping minors — who are at greater risk of harm from pregnancy due to age — from obtaining an abortion, allowing the law to take effect can also slow if not halt the work of advocates who aren't willing to take the legal risk of assisting those seeking abortion care, argued Mary Ziegler, a U.C. Davis professor of law and an historian whose research focuses on reproduction, health care and conservatism. Other individuals and organizations may also not understand that the court permits "recruiting" and opt to do nothing out of fear of prosecution, such as no longer providing helpful information to those seeking abortion care.
That outcome would likely be the "biggest danger" the Ninth Circuit's decision poses, Ziegler told Salon, noting that the court is one of "the least conservative appellate circuits in the country."
"To the extent people are afraid of providing information, that's going to be a much bigger universe of people who are going to be impacted," she said in a phone interview. "There's also potentially more room for misinformation too, if people are afraid to provide accurate information."
Ziegler said that, through laws such as this, Republican-led states like Idaho are seizing on the legal gray area of crime-facilitating speech — language that isn't protected by the Constitution because of its role in enabling transgressions of the law — as a means of projecting their power across their borders.
"Ironically, I think one of the reasons the Ninth Circuit went the way it did was because Idaho tried to go after states where abortion is protected," she said. "It's much harder to say if you're facilitating a minor's travel to get an abortion in the state where abortion is a constitutional right, you're facilitating the crime because in the eyes of the state you're traveling to, you're just exercising a right."
Ziegler also warned of the potential for the court's ruling to have reverberations for adults and lead to greater abortion restrictions. She noted the Idaho law's alignment with broader 2022 model legislation from the National Right to Life Committee, which the anti-choice organization describes as a "roadmap for the right-to-life movement" meant to protect "mothers and their children from the tragedy of abortion." Crime-facilitating speech, Ziegler predicted, will also be "fiercely fought over" in the nation's war over abortion rights.
"There's every reason to think that this won't be the last of it," she said.
Idaho has one of the strictest abortion policies in the nation, only allowing abortions in the event of medical emergency and in cases of rape or incest that have been reported to police. The surrounding states — Washington, Oregon and Montana — have more permissive abortion laws.
More than 20 Republican-led states have passed abortion bans or restrictions since the 2022 overturning of Roe v. Wade, which established a federal right to abortion care. Idaho has since become a key state in the nation's battle over abortion access, with the Supreme Court hearing arguments in a case around its abortion ban and a pending lawsuit in state court seeking to expand the ban's exceptions.
Lawmakers in at least four other states have also introduced similar abortion transporting bans. Tennessee passed its "abortion trafficking" ban, but a court later blocked the law from taking effect.
Coupled with the uncertainty around whether President-elect Donald Trump will uphold his campaign promise to leave abortion policy decisions to states or renew the anti-abortion record of his first term, the Ninth Circuit's decision brings into sharp focus the stakes for abortion access as the anti-abortion movement progresses nationally.
Still, Ziegler said, "you can't take your eyes off of what's happening in the states, regardless of what [Trump] does." Ziegler said.
Rebouché added she expects these types of laws to grow in number as the most conservative states become more aggressive in attempts to end abortion both within their borders and across the country.
"I think that's the ultimate goal of the pro-life movement, and these laws that chill travel and try to police people's behavior and keep them from helping others seek legal abortion out of state — that's the first step for that," she said.
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