Three years ago, the Idaho state legislature passed a law making it illegal to assist minors in crossing state lines to access abortion care. In the paranoiac tradition of American anti-abortion policy, the law was rooted in a poorly disguised moral panic: It specifically banned “abortion trafficking”—the fictional concept of shadowy adults coercing minors into having abortions and abducting them to make it happen. This, obviously, is a problem that doesn’t exist, and would curtail the very real rights of minors and their allies, all while claiming to have children’s best interests at heart.
Now, a lawsuit spearheaded by the Seattle-based gender equality legal advocacy group Legal Voice is challenging Idaho’s law, and what comes next could impact access to abortion everywhere, for better or for worse. “Everyone wants young people to be healthy and safe, but this law, if it stands, will put them in danger and isolate them from trusted adults, which is what nobody wants,” says Wendy Heipt, senior litigation counsel at Legal Voice.
Idaho has a trigger law that immediately criminalized abortion when Roe v. Wade was overturned, but Idahoans seeking abortions commonly travel to states like Washington and Oregon for care, a dynamic that predates Roe’s reversal and has stymied the efforts of anti-abortion activists, since freedom of movement is a constitutionally protected right. But by targeting young people’s access to abortion, Idaho lawmakers may have identified a loophole in their efforts to curtail abortion-related travel, one likely to be replicated elsewhere if it’s allowed to continue.
Legal Voice is arguing that Idaho’s travel ban blocks the First Amendment by preventing Idahoans from even discussing abortions across state lines. The law is also poorly written: it states that it’s illegal for an adult to “harbor” or “recruit” minors, but doesn’t give clear definitions for either term, which creates confusion both about following and enforcing the law. And then there’s that one pesky detail in the Constitution: the right to travel between states is a fundamental personal freedom, one that states with anti-abortion policies have struggled to successfully undermine, even as restrictive abortion bans have gone into effect since Roe v. Wade was overturned.
In an April memorandum requesting a summary judgment in the case, attorneys from Legal Voice, the Lawyering Project, and Stoel Rives LLP mapped out concerns the law raises about barring travel tied to health care when that treatment is legal in the destination state. “If states could prohibit such assistance, the right to travel would become meaningless in practice,” they wrote.
But if Legal Voice’s case prevails, it could set a useful precedent by affirming that an anti-abortion policy in one state can’t necessarily be enforced in another.
So far, Legal Voice and the case plaintiffs have secured an injunction to keep the law from going into effect. It was modified following an appeal to the Ninth Circuit and remains partially in place. Still, according to Legal Voice, “Under the current order, our clients can still provide information, encouragement, and financial resources to youth seeking abortion care.” Now back at the district court level, both sides have issued motions for a summary judgment, meaning a ruling could soon be issued, without the need for a trial.
Legal Voice’s plaintiffs in the case are Lourdes Matsumoto, a lawyer who needs to freely share abortion information in her work with young survivors of sexual assault and domestic violence; the Northwest Abortion Access Fund; and the Indigenous Idaho Alliance, which works with five Northwest tribes and connects pregnant people with abortion resources. “They serve indigenous communities throughout Idaho, including for health care autonomy, and they want to support people making their own decisions, including minors,” says Heipt. “And their family structure doesn’t always fit the way the laws are written.”
In choosing to target young people and the adults who support them, Idaho’s law isn’t unusual. It’s a common tactic in anti-abortion legislation (and anti-trans legislation, for that matter; the two are irrevocably intertwined): Work your way up to targeting access to health care for everyone, but begin by eroding minors’ access. “That’s typically where it starts,” says Heipt. “If they are successful with minors, I can assure you that it will not stop with minors.”
Historically, anti-abortion activists have accomplished this through policies like parental notification laws, popularized even before the US Supreme Court overturned Roe in Dobbs v. Jackson Women’s Health Organization. These laws required minors to involve their parents in decisions about abortion, or to make their case before a judge to get permission if involving a parent wasn’t possible.
Though it contains no real requirements for involvement from a caregiver, Idaho’s abortion travel ban has been justified, like parental notification laws, as a policy promoting parental rights.
But just as “abortion trafficking” isn’t a real problem, a parental rights framing around abortion doesn’t make much sense, either, since data shows most young people who seek abortion care voluntarily choose to involve trusted family members.
A study on parental involvement in minors’ abortion decisions, published in the Journal of Adolescent Health, found that most minors—64 percent—specifically shared their plans to seek abortion care with their mothers, and, intriguingly, that parental involvement did not automatically equate to greater confidence in pregnancy decisions. Even without parental support, 81 percent of young people had “high confidence” in their own decision-making around abortion; maternal involvement was “not significantly associated with having high confidence in the decision,” the researchers found.
This is a very different reality than the “abortion trafficking” Idaho’s travel ban has purported to solve. In fact, when the law was first introduced in the Idaho legislature, Idaho Anti-Trafficking Coalition executive director Jennifer Zielinski told the Idaho Statesman that conflating human trafficking with helping someone voluntarily seeking abortion disrupted actual efforts to stop trafficking and risked retraumatizing victims. While human trafficking does sometimes involve forced abortion or pregnancy as a tool of control, the Idaho law would do nothing to help. “It takes the true effort off course,” Zielinski told the paper.
Heipt agrees. “It really does a disservice to actual survivors of trafficking to call something ‘trafficking’ because you don’t like it,” she says. And even the bill’s proponents seemed to understand this: The word “trafficking” has since been removed from the law, a nod to its bad-faith framing.
Whether a judge will view it that way remains to be seen. A decision in the case is expected early next year.
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