A panel of three appellate judges issued a ruling this week reversing part of the preliminary injunction blocking enforcement of Idaho’s abortion trafficking statute, which criminalizes the act of helping a minor obtain an abortion without parental permission. The judges said the state can enforce the law when it comes to transporting or harboring a minor for that purpose, but not for giving a minor information about their options, which they said infringes on free speech rights. (Photo by Otto Kitsinger for the Idaho Capital Sun)

While some abortion access advocates viewed the 9th U.S. Circuit Court of Appeals’ ruling last week in a case over so-called “abortion trafficking” as another dismal development in their fight against anti-abortion laws, those representing the plaintiffs say it’s a clear win in the ongoing case.

A panel of three appellate judges issued an opinion Monday reversing part of the preliminary injunction blocking enforcement of Idaho’s abortion trafficking statute, which became law in 2022. The law originated from House Bill 242 and states that an adult who helps a minor procure or obtain an abortion by “recruiting, harboring or transporting” them without parent or guardian permission can be charged with a felony and face two to five years in prison. It includes those who go out of state, where the procedure is legal, such as Oregon, Washington and Montana. Idaho is the only state in the Northwest with a near-total ban on abortions.

The appellate panel said Idaho can enforce the law as it relates to “harboring or transporting” a minor, but it cannot prosecute individuals who simply provide information about where to obtain an abortion, or who provide other types of financial or logistical assistance to receive an abortion where it is legal. Those activities, the court said, could have fallen under the “recruiting” portion of the statute.

Plaintiffs’ attorney Wendy Heipt said the ruling is especially significant because it will ensure people can give accurate information to minors about their options. The minors who need that assistance the most are often the most vulnerable, she said, such as those with abusive caregivers.

“This is the first case at this level to (acknowledge that right), and that is a major victory,” Heipt said.

Legislation crafted with similar language as HB 242 became law in Tennessee earlier this year, but a judge blocked its enforcement in September with a preliminary injunction. That case is ongoing. Lawmakers in Alabama, Mississippi and Oklahoma also introduced similar legislation in 2024 that failed to advance, and the New Hampshire Bulletin reported a state Republican representative filed a similar bill ahead of the 2025 legislative session.

Portion of the case about right to interstate travel is yet to be argued

Idaho Attorney General Raúl Labrador said the decision was a “tremendous victory for Idaho” in a statement on Monday. 

“Idaho’s laws were passed specifically to protect the life of the unborn and the life of the mother,” he 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.”

He pointed out that the judges decided to reverse parts of the injunction because they think the plaintiffs are unlikely to succeed in court, which he views as a positive indication for the state’s case.

Idaho attorney Lourdes Matsumoto and two advocacy organizations, the Northwest Abortion Access Fund and the Indigenous Idaho Alliance, filed the lawsuit in July 2023 alleging the law restricts freedom of speech and the right to freely associate, and arguing it was too vague to be constitutional. Matsumoto and the staff within the advocacy organizations said the law interfered with their ability to counsel minors who are facing unplanned pregnancies, including any financial or logistical help in obtaining the abortion in another state.

U.S. 4th District Court Magistrate Judge Debora K. Grasham issued the injunction in November 2023, and Labrador appealed to the regional circuit court, which determined the injunction could only hold on the “recruiting” aspect of the law.

Heipt, of the gender equity organization Legal Voice, said there were several big wins for them in the 63-page ruling, including the affirmation that the groups have the right to sue, that the state attorney general is the right defendant, and that the recruiting part of the statute is unconstitutionally broad.

Heipt said while some took the ruling as confirmation that Idaho could restrict interstate travel through the law, that part of the statute hasn’t actually been argued in court yet and wasn’t part of the injunction or the circuit court’s opinion.

“This is a preliminary step. We have not yet had our full day in court, nor have we had a chance to explain the third prong of our argument (on) interstate travel,” she said. “That’s still coming, and I’m looking forward to it.”

Planned Parenthood representatives in Idaho call the decision ‘devastating’

Judge Margaret McKeown, the lead author of the 9th Circuit opinion who was appointed by former President Bill Clinton, wrote that the recruiting piece of the law was broad enough that it presented potential conflicts with First Amendment rights to freedom of speech. The judge said courts have deemed that protesters who try to dissuade people from entering abortion clinics are also protected under free speech laws.

“Even expressions of persuasive encouragement might be prosecuted under the statute,” McKeown wrote. “Imagine an Idaho resident who lives near the border of Oregon and displays a bumper sticker that reads: ‘Legal abortions are okay, and they’re right next door. Ask me about it!’ A minor sees the sticker and, feeling desperate, approaches the driver to request a ride across state lines.”

In that scenario, if the driver offered the minor cash for the procedure, the driver could be prosecuted for “recruiting.” McKeown added that the language also seems to encompass the ability to get a legal abortion in Idaho under one of the few exceptions, including rape and incest.

“That is, an adult concerned for the wellbeing of an underage victim of incest would be prohibited from counseling and then assisting that victim in obtaining an abortion without informing a parent — who may well be the perpetrator,” McKeown wrote.

Others in the advocacy space, such as Planned Parenthood Great Northwest Hawaii, Alaska, Indiana, Kentucky, called the decision “devastating.”

Mistie DelliCarpini-Tolman, state director of Planned Parenthood Alliance Advocates in Idaho, said the law has created a massive chilling effect among Idahoans, and the ruling is unlikely to change that problem.

“We are hearing from Idahoans out at restaurants who find out you work for Planned Parenthood and ask, ‘If I go to Oregon for an abortion and come back to Idaho, will I be arrested?’” DelliCarpini-Tolman said. “These laws, the way they interplay, are confusing to the average Idahoan, and it’s important to point out that it is intentional, to help create that chilling effect.”

DelliCarpini-Tolman added that data from an organization called Jane’s Due Process in Texas has found more than one-third of young women seeking abortions there said they feared physical, emotional or sexual abuse if their parents found out about their pregnancy.

“The numbers are there, they don’t lie, they show us the position that we’re putting young people in in Idaho,” she said. “For proponents of the bill to act like they’re trying to protect young Idahoans is the utmost hypocrisy, because those are the very people that it’s going to harm the most.”

Both sides can appeal ruling, say they’re weighing their options

Wendy Olson, an Idaho-based attorney who is also representing the plaintiffs, said both sides have two weeks to appeal the decision with the 9th Circuit, and her clients are still weighing their options. Dan Estes, spokesperson for Labrador’s office, told States Newsroom they are also considering their next move, which could include asking the U.S. Supreme Court to consider the case.

If neither side appeals, the case will proceed in district court for full arguments, but it’s unclear when that hearing would be held. Given the judges’ comments about their likelihood of victory in the case, Olson said they expect to spend time developing further evidence to strengthen their arguments for their day in court.