Sebastian's Point
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Idaho Abortion Trafficking Law – Court Decision Expected in Coming Weeks
The Dobbs v. Jackson Supreme Court decision in the summer of 2022 overruled Roe v. Wade and returned the abortion issue to Congress and the state legislatures. In the roughly 15 months since this landmark decision, states have enacted a wide variety of policies ranging from the permitting of abortion for any reason until the moment of birth to protective laws that do not permit abortion except in the case of rape, incest, and medical emergency.
One of the most heavily criticized-- and misrepresented -- pro-life laws to be enacted following the fall of Roe is the Idaho law to protect minor girls from abortion trafficking.
On April 5, 2023, Governor Little of Idaho signed a bill designed to protect minor girls in the state of Idaho. HB 242 makes it illegal for an adult to transport a pregnant minor within the state of Idaho for the purpose of obtaining an abortion with the intent to conceal the abortion from the parents or guardian of the minor. The law took effect May 5, 2023.
Shortly after the law went into effect, several plaintiffs (Lourdes Matsumoto, an attorney, the Northwest Abortion Access Fund, and the Indigenous Idaho Alliance) filed suit against the law.
According to the Idaho Capital Sun, “U.S. Magistrate Judge Debora K. Grasham is expected to decide in the coming weeks whether to grant a request to temporarily bar Idaho Attorney General Raúl Labrador from enforcing the state’s so-called “abortion trafficking” law as a lawsuit over its constitutionality proceeds in federal court.”[1]
Two of the main arguments that plaintiffs are making surround the claims that 1. The law is vague and it is too difficult to actually understand what is illegal, and 2. Minor girls need to be able to hide pregnancies from abusive parents.
No one, neither an adult nor a minor, is restricted from traveling out of Idaho for an abortion. While it is true that Idaho protects the preborn throughout gestation within its state, nothing prohibits an adult from traveling for an abortion, nor a minor from traveling herself.[2] What is prohibited is an adult transporting the minor girl within Idaho state lines IF the intent is to conceal it from her parents.
Attorney General Labrador confronts the claim that people would not know if they are violating the law head-on, writing,
The [plaintiffs] sidestep over the important purposes of the Abortion Trafficking Ban in protecting parents’ rights. The law does not threaten their speech—instead, it prohibits only specified conduct that intentionally causes a pregnant minor’s abortion with an intent to conceal the abortion from the minor’s parents. The law does not prohibit them from associating with anyone. Nor is it vague: the same three verbs that Plaintiffs challenge—recruit, harbor, and transport—are used in many human trafficking statutes, including the federal statutes that Plaintiffs’ counsel previously enforced and the statutes of various State Amici……[3]
In any other context, Plaintiffs’ statements about their plans would readily be recognized for what they are: the crime of child custody interference. That offense is when one “intentionally and without lawful authority … takes, entices away, keeps or withholds any minor child from a parent or another person or institution having custody, joint custody, visitation, or other parental rights.” See Idaho Code § 18- 4506(1)(a). That is exactly what Plaintiffs want to do here. And if they do it for the additional purpose of helping a pregnant minor to obtain an abortion with an intent to conceal the abortion from the minor’s parents, they also commit the crime of abortion trafficking.[4]
National Right to Life, who drafted the model legislation that the Idaho law is based on, wrote in a recent press release,
“If successful, the challenge to Idaho’s abortion trafficking law could potentially make minor daughters the victims of sexual predators and traffickers,” said Carol Tobias, president of National Right to Life. “The only ones to benefit would be the traffickers who would exploit minor girls. There are those who would prey on minors and then conceal their crimes by procuring abortions for their victims,” said Tobias. “Idaho’s law is designed to protect minor daughters from predators and from those who would deny parents the right to be involved in their minor daughter’s abortion.”[5]
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The problem of abusers covering up for their crimes using abortion has been long understood by those in the pro-life movement. In a 2018 Live Action report, “Aiding Abusers: Planned Parenthood’s cover-up of child sexual abuse”, the group details,
Planned Parenthood [has become] a haven for sexual abusers and sex traffickers. Planned Parenthood is a favorite place to take their victims to cover up their crimes. A study on the brutal sex trafficking trade published by the Loyola University Chicago’s Beazley Institute documents how traffickers often force their victims to get abortions at Planned Parenthood so they can quickly get them back on the streets. The report notes that victims had “significant contact with clinical treatment facilities, most commonly Planned Parenthood.” In fact, Planned Parenthood was the top most-visited facility for trafficking victims, second only to hospital emergency rooms. When asked why they went to Planned Parenthood, one survivor said “because they didn’t ask any questions.”[6]
Parents are uniquely situated to help a child deal with abuse and unexpected pregnancy; they should not have it hidden from them. Further, opponents of the Idaho law say that it is often the parent’s who themselves are abusive and minors need to be protected.
Attorney General Labrador addresses this argument, explaining,
Plaintiffs say they need to take these actions as to all pregnant minors because some of them may be abused or neglected by their parents. Dkt. 12-1 at 1. But “the statist notion” that Plaintiffs have the unilateral right to substitute themselves for a child’s parents “in all cases because some parents abuse and neglect children is repugnant to American tradition.” Parham, 442 U.S. at 603. And if Plaintiffs have concerns about abuse and neglect, Idaho already has in effect a comprehensive statutory scheme for protecting children from parents who abuse or neglect their children. See Child Protective Act, Title 16, Chapter 16, Idaho Code. This statutory scheme starts not with Plaintiffs determining for themselves whether parents are fit or not, but a report to the Idaho Department of Health and Welfare or local law enforcement. In fact, Plaintiffs, should they have a “reason to believe” that a pregnant minor they are trying to help “has been abused, abandoned, or neglected,” have a duty to report the matter, within 24 hours, to the proper law enforcement agency or the Idaho Department of Health and Welfare. Idaho Code § 16-1605(1). Failing to make the report is a misdemeanor. See Idaho Code § 16-1605(4). [7]
This important abortion trafficking legislation in Idaho seeks to build on the long and legally permissible ability of states (even under Roe v. Wade) that seek to involve parents in the care of their children. Most parental involvement laws require that abortionists either notify, or obtain consent, or both notify and obtain consent, of a parent or guardian before a minor girl has an abortion.
The Idaho law is not seeking to punish women or ban travel. It is preventing a life-altering and potentially serious abortion procedure from being intentionally concealed from a minor girl’s parents.
Observers continue to wait for a decision from the Idaho courts as to whether this life-affirming legislation can continue to remain in effect.
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[1] Moseley-Morris, Kelcie. “Judge May Rule Soon on Whether Idaho’s ‘Abortion Trafficking’ Law Can Be Enforced.” Idaho Capitol Sun, 14 Sept. 2023, https://idahocapitalsun.com/2023/09/14/judge-may-rule-soon-on-whether-idahos-abortion-trafficking-law-can-be-enforced/. Accessed 20 Sept. 2023.
[2] Idaho enacted a trigger law that protects unborn children throughout gestation; it became effective on August 25, 2022. Idaho also enacted a heartbeat law and a heartbeat trigger law; these laws were challenged and upheld by the Idaho Supreme Court in Planned Parenthood Great Nw. v. State (January 2023).
[3] Matsumoto v. Labrador (1:23-cv-00323) District Court, D. Idaho. MEMORANDUM in Opposition re 12 MOTION for Temporary Restraining Order filed by Raul Labrador at 12. https://storage.courtlistener.com/recap/gov.uscourts.idd.52541/gov.uscourts.idd.52541.32.0.pdf
[4] Id. At 9.
[5] The Truth About Idaho’s Parental Consent Law and the Law Preventing the Abortion Trafficking of Minors. August 3, 2023 https://www.nrlc.org/communications/the-truth-about-idahos-parental-consent-law/
[7] MEMORANDUM in Opposition re 12 MOTION for Temporary Restraining Order filed by Raul Labrador pp 6-7.
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