A federal appeals court this week allowed Idaho to enforce its “abortion trafficking” law, reinstating most of a 2023 statute that criminalizes recruiting, harboring, or transporting a minor to access out-of-state abortion care without parental consent. While both sides in the lawsuit claimed partial victories, reproductive law experts warned the ruling could harm efforts to protect abortion rights across state lines.
Shortly after the law passed in 2023, attorney Lourdes Matsumoto and two pro-choice organizations challenged it, citing concerns over its penalties of two to five years in prison for violations, as reported by The Guardian. They argued that the law infringed on First Amendment rights and deterred them from advising minors seeking abortion care.
On Monday, the Ninth Circuit Court of Appeals ruled that “harboring” and “transporting” are not protected as expressive speech under the First Amendment, partially overturning a lower court’s decision to block the law. However, the court clarified that Idaho residents cannot be criminalized for obtaining an abortion in states where it is legal.
“Idaho’s asserted police powers do not properly extend to abortions legally performed outside of Idaho,” wrote Judge M. Margaret McKeown in the majority opinion.
Rachel Rebouché, dean of Temple University’s Beasley School of Law and an expert in reproductive health law, noted that while the ruling affirmed Idaho could not prohibit its residents from seeking legal abortions elsewhere, reinstating parts of the law might still have damaging effects. “Allowing Idaho to criminalize and punish those who harbor or transport creates fear and confusion,” she explained in an interview.
The ruling coincides with broader challenges in Idaho, where narrow abortion bans already force some women to seek emergency airlifts for medical care. Rebouché warned that the law could worsen these situations and embolden other states to follow Idaho’s lead.
Both sides found aspects of the ruling favorable. Idaho Attorney General Raúl Labrador praised it as a “tremendous victory” for life in Idaho. Meanwhile, attorney Wendy Heipt, representing the challengers, called it a significant win for protecting free speech, as it allows Idahoans to discuss abortion care with pregnant minors.
The appellate court also addressed concerns about the law’s vagueness, dismissing the claim that its language made enforcement unconstitutional. However, it determined that the “recruiting” provision likely infringes on free speech protections, as it encompasses actions like counseling, advocacy, and emotional support related to abortion care. Judge McKeown affirmed that these are constitutionally protected under Supreme Court precedent.
Despite this protection, Rebouché and other experts fear the ruling could inspire similar legislation in other states, further restricting abortion access. Mary Ziegler, a U.C. Davis law professor and historian, cautioned that advocates might hesitate to provide information out of fear of prosecution, leading to widespread confusion and misinformation.
Ziegler also highlighted how Idaho’s law aligns with model legislation proposed by anti-abortion organizations to expand restrictions beyond state borders. She noted that these efforts could escalate national battles over abortion access, especially as courts grapple with the gray area of crime-facilitating speech.
Idaho’s strict abortion laws only allow procedures in cases of medical emergencies, rape, or incest reported to law enforcement. Neighboring states like Washington, Oregon, and Montana have more permissive laws, making Idaho a focal point in the national fight over abortion rights.
Since the 2022 Supreme Court decision overturning Roe v. Wade, over 20 Republican-led states have passed abortion bans or severe restrictions. Idaho has emerged as a key battleground, with its laws drawing legal challenges in both state and federal courts.
Legislators in at least four other states have introduced similar bans on transporting minors for abortions. Tennessee passed a similar “abortion trafficking” law, but courts have blocked its enforcement.
This decision comes amid uncertainty about whether a future administration might revisit federal abortion policies. Even so, Ziegler emphasized the need to monitor state-level developments, as conservative states continue pursuing aggressive measures to limit abortion access nationally.
Rebouché anticipates an increase in such laws as states intensify their efforts to restrict abortion within and beyond their borders. “These laws that chill travel and policing behavior to stop people from assisting legal abortions out of state are just the first step in advancing that agenda,” she said.