BOISE, Idaho — A federal judge has temporarily blocked Idaho’s “abortion trafficking” law from being enforced while a lawsuit challenging its constitutionality is underway.
“This lawsuit is not about the right to an abortion. It is about much more,” U.S. District Magistrate Debora K. Grasham wrote in the ruling handed down Wednesday. “Namely, long-standing and well recognized fundamental rights of freedom of speech, expression, due process, and parental rights. These are not competing rights, nor are they at odds.”
Abortion is banned in Idaho at all stages of pregnancy, and the law enacted in May was designed to prevent minors from getting abortions in states where the procedure is legal if they don’t have their parents’ permission. Under the law, people who help a minor who isn’t their own child arrange an abortion out of state can be charged with a felony, though they can then attempt to defend themselves in court later by proving that the minor had parental permission for the trip.
Supporters of the law call it an “abortion trafficking” ban. Opponents say it is an unconstitutional prohibition on interstate travel and free speech rights.
Two advocacy groups and an attorney who works with sexual assault victims sued the state and Idaho Attorney General Raul Labrador over the law earlier this year. Nampa attorney Lourdes Matsumoto, the Northwest Abortion Access Fund, and the Indigenous Idaho Alliance all work with and sometimes assist minors who are seeking abortions, and they wrote in the lawsuit that they wanted to continue without the threat of prosecution.
They said the law is so vague that they can’t tell what conduct would or would not be legal, and that it violates the First Amendment right of free expression. They also argued that the law infringes on the Fourth Amendment right to travel between states, as well as the right to travel within Idaho.
Grasham agreed with the state’s attorneys that there is no court-protected right of travel within the state under existing case law in Idaho, and she dismissed that part of the lawsuit. But she said the other three claims could move forward, noting that the plaintiffs’ intended assistance to minors is essentially an expression of their core beliefs, in the form of messages of “support and solidarity for individuals seeking legal reproductive options.”
The judge wrote that she wasn’t placing free expression or due process above parental rights or vice versa, saying those rights have co-existed in harmony for decades and can continue to do so.
“The state can, and Idaho does, criminalize certain conduct occurring within its own borders such as abortion, kidnapping, and human trafficking. What the state cannot do is craft a statute muzzling the speech and expressive activities of a particular viewpoint with which the state disagrees under the guise of parental rights,” she wrote.
Prosecutors in eastern Idaho recently charged a woman and her son with second-degree kidnapping, alleging they took the son’s minor girlfriend out of state to get an abortion. The prosecutors did not invoke the so-called “abortion trafficking” law in that case. Instead, they said the criminal kidnapping charge was brought because the mother and son intended to “keep or conceal” the girl from her parents by transporting “the child out of the state for the purpose of obtaining an abortion.”
The woman’s defense attorney did not immediately return a phone call. seeking comment The son’s court file was not available online, and it wasn’t immediately clear if the case against him was still underway.
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