On Tuesday, a representative for the state of Idaho urged a federal appeals court to revive a 2023 state law that criminalizes assisting a minor in crossing state lines for an abortion without parental consent. This law had been blocked by a lower court judge in November.
Idaho Deputy Solicitor General Joshua Turner argued before the three-judge panel of the 9th U.S. Circuit Court of Appeals in Seattle, stating, "The law is narrow and, one would think, unobjectionable. It prohibits adults from recruiting, harboring, or transporting unemancipated minors within Idaho to procure an abortion, but only when that act is done with the specific intent to conceal it from the minor's parents or guardians."
In November, a federal judge in Boise had halted enforcement of the law while considering a lawsuit brought by Lourdes Matsumoto, a lawyer and advocate for victims of sexual violence, along with the Northwest Abortion Access Fund and Indigenous Idaho Alliance, which assist people in Idaho in accessing abortion. They argued that the law violated their right to free speech under the First Amendment of the U.S. Constitution.
Their lawyer, Wendy Olson, argued that the law "seeks to criminalize an unclear amount of undefined assistance to minors" and amounted to regulation of protected speech and expression because it prevents individuals from informing minors about abortion options.
During the argument, Circuit Judges M. Margaret McKeown and John Owens, both appointed by Democratic presidents, appeared open to reviving at least part of the law. Circuit Judge Carlos Bea, appointed by Republican President George W. Bush, did not speak during the argument.
McKeown questioned how transporting someone could be considered speech protected by the First Amendment and asked whether the part of the law against "recruiting" could be blocked, suggesting it interfered with speech simply informing minors about accessing abortions, while upholding the prohibitions on harboring and transporting.
Idaho almost entirely bans abortions, with exceptions for cases to save the mother's life and for rape or incest reported to police. However, it borders Washington, Oregon, and Montana, where abortions are legal.
Under Idaho's law, adults who help minors obtain abortions without parental or guardians' consent could face a minimum of two years in prison if convicted.
This case is one of several challenging laws that criminalize assisting residents in traveling to states where abortion is legal. The U.S. Supreme Court overturned Roe v. Wade in 2022, the landmark 1973 ruling that established a nationwide right to abortion.
Last year, a group of Alabama healthcare providers and a fund that assists people in the state filed lawsuits seeking to block anyone from being prosecuted under state law for helping someone travel out of state for an abortion. Alabama's Republican attorney general had suggested that Alabamans who did so could be prosecuted as criminal accomplices.