SEATTLE, Wash. — An hour of arguments over whether Idaho's abortion trafficking law violates the constitution revolved around how the state defines terms including "recruitment" in relation to the crime of trafficking.
The Idaho State Legislature passed House Bill 242 (H242) in the 2023 Legislative Session to ban people from helping minor access abortion outside Idaho without parental consent. Idaho law currently bans abortion in most cases except for rape, incest, or a doctor’s medical decision to prevent the death of the woman. Other narrowly tailored medical exemptions to obtain a legal abortion including an ectopic or molar pregnancy.
Attorney Wendy Olson represents the plaintiffs - the Northwest Abortion Access Fund and the Indigenous Idaho Alliance - who help pregnant women who want an abortion to obtain the procedure. Some of those people are minors in Idaho.
H242 states abortion trafficking includes the act of "recruiting, harboring or transporting." Ninth Circuit judges spent much of the hour questioning how only of these terms can stand alone to qualify as trafficking.
"An organization that is going to harbor and transport that child to receive an abortion, then yes, that could be recruitment if it's combined with a specific intent element, but that's the conduct we're talking about," Idaho Deputy Solicitor General Joshua Turner said. "Not speech."
The plaintiffs argue the law violates their first amendment rights. It is unclear what constitutes sufficient "recruitment" to violate the law which then creates a chilling effect, according to Olson.
"It regulates only speech and expression that favors abortion. It prohibits plaintiffs from saying things that the state disagrees with," Olson said. "Speech intended to bring about a particular unlawful act has no social value; therefore, it isn't protected. And that's precisely the problem with the statute here, Your Honor. They're not speaking about an unlawful act. They're speaking about a lawful act. Abortion is lawful in the place where it occurs by my colleague from the state's argument."
Full oral arguments are available here.
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