Idaho's 'abortion trafficking' law mostly can be enforced as lawsuit proceeds, court rules

BOISE, Idaho — A federal appeals court on Monday ruled that most of Idaho's first-in-the-nation law that makes it illegal to help minors get an abortion without the consent of their parents can take effect while a lawsuit challenging its constitutionality continues.

The decision by the 9th U.S. Circuit Court of Appeals said the statute’s prohibition on helping a minor get an abortion by harboring and transporting them with the intent to conceal the procedure from the minor’s parents is likely to be found constitutional and can be enforced.

Part of the law remains blocked, however. The court found that the law’s prohibition on “recruiting” pregnant youth violates the First Amendment. That means prosecutors, for now, will not be able to charge a person with “recruiting” or influencing a minor to have an abortion.

"Encouragement, counseling, and emotional support are plainly protected speech,” the court wrote, even when that speech happens in the “context of deciding whether to have an abortion.”

The ruling largely reverses U.S. Magistrate Judge Debora K. Grasham's decision, which prevented the law from being enforced after opponents sued the state in the summer of 2023.

Abortion is banned in Idaho at all stages of pregnancy, and the law enacted in 2023 was designed to prevent minors from getting abortions in states where the procedure is legal if they don’t have their parents’ permission.

Supporters of the law call it an “abortion trafficking” ban. Opponents say it is an unconstitutional prohibition on interstate travel and free speech rights. Both sides framed Monday's ruling as a victory.

“This decision is a significant victory for the plaintiffs, as it frees Idahoans to talk with pregnant minors about abortion health care,” Wendy Heipt, a lawyer for the plaintiffs, said in an emailed statement Monday.

She said the plaintiffs, which include multiple advocacy groups, are also considering their appeal options.

Idaho Attorney General Raúl Labrador in an emailed statement called the ruling a victory for the state.

“Idaho’s laws were passed specifically to protect the life of the unborn and the life of the mother, Labrador said. "Trafficking a minor child for an abortion without parental consent puts both in grave danger, and we will not stop protecting life in Idaho.”

The law makes it illegal to either obtain abortion pills for a minor or to help them leave the state for an abortion without their parents’ knowledge and consent. Anyone convicted will face two to five years in prison and could also be sued by the minor’s parent or guardian. A parent who raped their child will not be able to sue, though the criminal penalties for anyone who helped the minor obtain an abortion will remain in effect.