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idaho
Federal Court Rules Idaho Can Enforce So-Called 'Abortion Trafficking' Law
"If legislators were trying to trap men in states where they couldn't get healthcare, we would never hear the end of it," said one advocate.
Dec 03, 2024
Nearly two years after it was first proposed by Republican lawmakers, an Idaho law that, as one rights advocate said, essentially "traps" people in the state to stop them from getting abortion care, was permitted to go into effect on Monday after a federal appeals court ruling.
The Ninth U.S. Circuit Court of Appeals ruled that Idaho can prohibit people from "harboring or transporting" a minor who needs to leave the state to obtain an abortion, which is still legal in the surrounding states of Oregon, Washington, and Montana.
The law, originally proposed as House Bill 242, makes the so-called crime of "abortion trafficking" punishable by two to five years in prison, even if the pregnant person obtains an abortion in a state where the procedure is legal.
The law was blocked in its entirety in late 2023 by a judge who found it violated First Amendment rights, because it also included a ban on "recruiting" teenagers to obtain abortion care across state lines.
The appeals court on Monday found that the "recruitment" portion of the law did violate the constitutional right to free speech because it could be applied to anything "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," wrote Judge M. Margaret McKeown, an appointee of former Democratic President Bill Clinton, in the majority opinion.
"Republicans want to scare anyone who might help teens access abortion—whether it's a beloved grandmother or a local abortion fund."
Wendy Heipt, an attorney representing the Northwest Abortion Access Fund and the Indigenous Idaho Alliance as well as a lawyer and advocate who sued the state over the law, said the portion of the ruling regarding "recruitment" was a "significant victory for the plaintiffs, as it frees Idahoans to talk with pregnant minors about abortion healthcare."
But Jessica Valenti, a writer and advocate who writes the Substack newsletter Abortion, Every Day, said efforts to establish traveling for abortion care as a crime should be "front page news every single day."
"If legislators were trying to trap men in states where they couldn't get healthcare, we would never hear the end of it," wrote Valenti.
Republicans in Idaho have pushed the law as one that would "stop adults from taking minors across state lines for abortions without parental permission," Valenti added. "In truth, the law criminalizes helping a teenager obtain an abortion in any capacity—anywhere."
She continued that the ban's "sweeping language... could send someone to prison as a 'trafficker' for lending a teen gas money."
"That's the point, of course: Republicans want to scare anyone who might help teens access abortion—whether it's a beloved grandmother or a local abortion fund," wrote Valenti. "They're targeting the helpers."
Tennessee Republicans have also passed an "abortion trafficking" law, but a court blocked it from being enforced in September, with U.S. District Judge Aleta Trauger writing that the state had "chosen to outlaw certain communications in furtherance of abortions that are, in fact, entirely legal."
"It is, therefore, a basic constitutional fact—which Tennessee has no choice but to accept—that as long as there are states in which abortion is permissible, then abortion will be potentially available to Tennesseans," added Trauger.
Republicans in Mississippi, Alabama, and Oklahoma have introduced similar legislation, while Alabama Attorney General Steve Marshall has suggested states can restrict pregnant residents' travel.
Valenti wrote that Monday's ruling "is not just about Idaho" and that laws barring travel for abortion care will not "stop with teenagers."
"Young people are the canaries in the coal mine," she wrote. "What happens to them today comes for us all tomorrow."
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Outrage as GOP AGs Argue Fewer Pregnant Teens Deprive States of Population Increases
"This is what potentially winning right-wing legal cases read like these days," said one progressive activist. "Dark stuff."
Oct 22, 2024
Opinion polls have repeatedly made clear that U.S. voters are turned off by the Republican Party's fixation on banning abortion care and controlling Americans' reproductive choices—but that didn't stop three GOP officials from writing in a court filing this month that they want to restrict abortion pill access because it would reduce teen pregnancy rates in their state.
"In my expert legal opinion, this is deeply gross and weird," wrote attorney and writer Madiba K. Dennie on Monday at Balls & Strikes, a news outlet focused on the judiciary.
Dennie was referring to a legal filing by Republican Attorneys General Andrew Bailey of Missouri, Kris Kobach of Kansas, and Raúl Labrador of Idaho in a case regarding mifepristone, one of two pills commonly used in medication abortions—which account for more than half of abortions in the United States.
As S.P. Rogers wrote at the newsletter Repro-Truth, attorneys general filed an amended complaint earlier this month in an effort to revive Alliance for Hippocratic Medicine v. Food and Drug Administration (FDA), a case in which the plaintiffs argued in favor of severely restricting mifepristone access nationwide.
The three states had joined the case earlier this year, before the U.S. Supreme Court rejected the case based on the plaintiffs' lack of standing.
Because the high court didn't outright dismiss the case, the three attorneys general were able to file a complaint on October 11 seeking to prohibit mifepristone use for anyone under the age of 18 and overturn eased restrictions for the drug.
Bailey, Kobach, and Labrador argued that mifepristone access would could cause "injuries" to their states because it is "depressing expected birth rates for teenaged mothers."
"A loss of potential population causes further injuries as well: The [states'] subsequent 'diminishment of political representation' and 'loss of federal funds,' such as potentially 'losing a seat in Congress or qualifying for less federal funding if their populations are' reduced or their increase diminished," reads the court filing.
In other words, wrote Rogers, in the view of the Republican state officials, "teenage girls, which the states refer to as 'teenaged mothers,' exist for the purposes of churning out new citizens for the states."
"Idaho, Kansas, and Missouri are claiming to have a legitimate, sovereign state interest in forced birth—in teenage girls and women as breeders. It's an argument that positions everyone capable of birthing as brood mares—a scenario in which the state does not exist for the people, but the people for the state—and augurs a future claim for the prohibition of contraception," added Rogers.
Republicans including GOP presidential nominee Donald Trump have signaled their desire to roll back the right to contraception.
At Balls & Strikes, Dennie wrote that the GOP officials made clear that they believe "uteri are state slush funds, and girls owe the state reproduction once they are capable of it."
"A personal dislike of somebody else taking medicine is not a legitimate grievance," wrote Dennie. "So the states are trying to show that they are entitled to the population growth and accompanying funds that pregnant minors would produce, and the FDA is getting in the way of that."
While the argument is "shocking in its brazenness," added Dennie, it shouldn't come as a surprise in a country where the Republican Party has shown no sign of backing down from its goal of banning abortion, even as news reports mount about children who have been forced to give birth and pregnant patients who have died or become gravely ill because healthcare providers have refused to treat them for fear of prosecution.
The legal complaint, said Dennie, "is a natural outgrowth of the conservative legal movement's efforts to subordinate women."
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Supreme Court 'Inadvertently' Posts Draft Decision for Emergency Abortions Case
One expert said the theme of both abortion cases this term is "kicking the can down the road—and significantly, until after a major election."
Jun 26, 2024
A U.S. Supreme Court spokesperson confirmed an opinion that would allow emergency abortions in Idaho despite its strict ban was accidentally shared Wednesday on the website—from which the full text was copied by Bloomberg before it was taken down.
"The court's Publications Unit inadvertently and briefly uploaded a document to the court's website," said Patricia McCabe, the court's public information officer. "The court's opinion in Moyle v. United States and Idaho v. United States will be issued in due course."
After the high court's right-wing supermajority reversedRoe v. Wade two years ago with Dobbs v. Jackson Women's Health Organization, several states including Idaho further restricted abortion care. This case centers on the Emergency Medical Treatment and Labor Act (EMTALA), a federal law requiring emergency departments that accept Medicare to provide patients with "necessary stabilizing treatment," which the Biden administration argues includes abortions.
The text obtained by Bloomberg suggests that the justices will issue a 6-3 decision—with Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissenting—that reinstates a district court order ensuring hospitals can perform emergency abortions in the state if the pregnant person's health is at risk while litigation proceeds to a federal appeals court.
"Victory will only happen when abortion is completely legal, available, and accessible for everyone, everywhere in the country."
This will be the Supreme Court's second abortion-related decision this term; earlier this month, the justices unanimously agreed to preserve access to mifepristone, a medication commonly used for abortion care. In response to the first ruling, Destiny Lopez, acting co-CEO of the pro-choice Guttmacher Institute, said that "we are relieved by this outcome, but we are not celebrating."
Liberal Justice Ketanji Brown Jackson wrote in the text obtained by Bloomberg that "today's decision is not a victory for pregnant patients in Idaho. It is delay. While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires. The court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it."
Reproductive Freedom for All president and CEO Mini Timmaraju said in a statement Wednesday that "we agree with what Justice Ketanji Brown Jackson reportedly said—this is not a victory but a delay. The abortion bans that are putting people's lives on the line in the first place will continue to remain on the books."
Fatima Goss Graves, president and CEO of the National Women's Law Center, said that "while we await the final decision in what should be an open-and-shut case, we are furious that this draft appears to leave the door open for the Supreme Court to end emergency abortion care in the coming months or years."
"It is unconscionable that this court would allow the continued suffering of patients who need emergency care now," she asserted. "It is only a small measure of justice that for now people in Idaho can continue to access the care that they need—victory will only happen when abortion is completely legal, available, and accessible for everyone, everywhere in the country."
Legal historian Mary Ziegler wrote on social media that "I worry that this will be reported as a big win for abortion rights. The litigation will continue if this is the final decision. The theme of both cases this term is that SCOTUS is kicking the can down the road—and significantly, until after a major election."
Reproductive freedom is a key issue in elections at all levels of government this cycle, including the race for the White House. Democratic President Joe Biden, who supports abortion rights, is set to face former Republican President Donald Trump, who has bragged about appointing three of the six justices responsible for the Dobbs ruling—which, notably, was leaked nearly two months before its official release.
"We're grateful that the Biden administration is fighting to preserve the shreds of access possible in states where anti-abortion extremists are doing everything in their power to block people from the care they need, even under the most dire of circumstances," said Timmaraju.
"We won't forget who is responsible for these bans—Donald Trump and the MAGA Republicans who enabled him," she added. "Our rights are on the line, and we must send President Biden back to the White House to restore the federal right to abortion and end these bans once and for all."
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