Idaho law on abortion ‘trafficking’ expected to inspire other states

Amid a flood of residents fleeing states that ban abortions to seek legal procedures or medication elsewhere, Idaho has become the first state to try to stem that exodus – at least for minors.

Abortion is illegal at all stages of pregnancy in Idaho and a dozen other states. The law signed by Republican Gov. Brad Little Wednesday creates a new crime of “abortion trafficking,” threatening prosecution for any adult who helps transport a pregnant Idaho girl to get an abortion without her parents’ consent.

Abortion rights advocates and legal experts say they expect other states to follow Idaho’s approach – and eventually to extend interstate travel prohibitions to adults.

The U.S. Constitution does not explicitly include a right to interstate travel, but it is implied. Idaho’s law attempts to skirt that issue by criminalizing only the in-state portion of a trip to another state to procure an abortion. In other words, it focuses on transportation to the Idaho state line.

“Abortion opponents are testing the waters around abortion bans with this Idaho law, because state lawmakers realize they’re facing a real uphill climb in courts because of the federal right to travel,” said Elizabeth Nash, principal policy associate at the Guttmacher Institute, which supports abortion rights. “Other states will be watching closely to see how this plays out.”

Idaho’s travel ban is based on wording in a model abortion law proposed by the National Right to Life Committee for lawmakers to introduce in their states.

Carol Tobias, president of the anti-abortion organization, said the section of the model law on unlawful abortion trafficking of minors “is intended to send a strong message that parents are responsible for their girls and nobody else should be taking their daughters to medical appointments without their knowledge.”

Providing information on abortions is allowed under Idaho’s new criminal statute. But giving abortion pills to a pregnant girl or harboring or transporting her without a parent’s consent is punishable by two to five years in prison. The law also allows family members to sue any health care provider, whether in-state or out-of-state, who performs an abortion on an Idaho minor.

Rebecca Gibron, CEO of Planned Parenthood Great Northwest, told the Idaho Capital Sun her organization intends to challenge the law.

Right to travel

Ever since the U.S. Supreme Court overturned the federal right to abortion last June, abortion rights advocates have anticipated that states where abortion is illegal would try to prevent their residents from leaving the state to legally end their pregnancies. But the implied constitutional right to interstate travel was seen as a deterrent.

In the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health decision, Justice Brett Kavanaugh wrote in his concurring opinion that the decision does not allow a state to bar a resident from traveling to another state to obtain an abortion.

Idaho’s new law attempts to avoid that legal hurdle by defining the abortion trafficking crime as transporting a pregnant girl within the state. But even without that language, David Cohen, professor of law at Drexel University in Philadelphia, said Idaho’s law could survive legal challenges in state and federal courts. That’s because state constitutions vary widely on the question of interstate travel and the U.S. Constitution does not explicitly guarantee it.

As a result, Cohen and others say the issue likely will have to be decided by the Supreme Court.

“And given how abortion changes everything,” he said, “there’s no way to predict how the Supreme Court will rule on such a law other than to follow its views on abortion.”

Parental consent

Minors make up only a small percentage of patients who receive abortions in the United States, according to data from the federal Centers for Disease Control and Prevention. Of the roughly 620,000 Americans who received abortions in 2020, only 8.2% were girls aged 15 to 19, and only 0.2% or 1,333 were younger than 15.

Despite the small numbers, state laws requiring clinicians to either notify or get the consent of parents before performing abortions on a minor have been around since the 1970s, shortly after the federal right to abortion was established by the Supreme Court in Roe v. Wade.

But courts have since required states to include judicial bypass provisions that allow a judge to waive parental notification and consent requirements for minors in cases involving rape, sexual abuse, incest and other circumstances.

Parental consent and notice laws exist in most states. Reproductive rights advocates argue such laws limit minors’ rights.

In addition, two states – Arizona (2013) and Arkansas (2014) – have laws on the books that are similar to Idaho’s new law, making it a crime to help a minor get an abortion without their parents’ knowledge. But those laws – enacted when abortion was legal in every state – were intended to bar people from helping a minor leave the state to circumvent parental notice and consent laws. A 2005 Missouri law that required minors to get parental consent to travel for an out-of-state abortion was struck down.

“Right now, these teens don’t have anywhere to go, and that includes foster teens and teens whose parents may not be supportive,” said Alina Salganicoff, senior vice president and director of women’s health policy at the Kaiser Family Foundation, which supports abortion rights. “Judicial bypasses are extremely difficult and traumatic for a minor to go through and challenging to get done, particularly in a timely way.

“Young people who’ve been victims of sexual violence are, in many cases, unlikely to report these acts and they’re extremely vulnerable. They need an adult they can trust and, in some cases, it’s not their parent,” she said.

In Idaho, Kerry Uhlenkott, legislative coordinator for Right to Life of Idaho, said she and the new law’s sponsors were motivated by a story they heard from a single mother whose teen daughter was “trafficked” to an abortion clinic in Oregon without her knowledge.

“A school counselor became aware that the girl was pregnant and took her to a clinic in Oregon without the mother’s consent,” Uhlenkott said. “The mother was horrified that this happened without her knowledge or consent, and she was just heartbroken that she wasn’t involved in the decision. That’s what got us involved.”