A 9th U.S. Circuit Court of Appeals largely upheld an abortion travel ban that prohibits minors from traveling out of state for abortions without parental consent.
The Monday decision partially reversed a 2023 preliminary injunction that blocked enforcement of the state’s abortion trafficking law on First Amendment grounds. Although some national abortion rights groups described the ruling as “devastating for young people in Idaho,” an attorney for the pro-choice plaintiffs in the case told HuffPost on Friday there was one major victory in the ongoing case.
The Monday decision is only a small part of a larger case surrounding the state’s so-called “abortion trafficking” law. Litigation is currently ongoing and the merits of the case have yet to be argued. The law is not currently in effect.
The law, signed last year by Gov. Brad Little (R), created a new felony called “abortion trafficking,” defined as when an “adult ... with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion … or obtains an abortion-inducing drug” for that minor. “Abortion trafficking” also involves “recruiting, harboring, or transporting” a pregnant minor for an abortion, the law states. Violations are punishable by two to five years in prison.
The law’s sweeping language seeks to criminalize anyone transporting a pregnant minor without parental consent with the intent to get an abortion, or any adult offering counseling to a pregnant minor on the minor’s reproductive health options.
Idaho Attorney General Raúl Labrador, a vocal opponent of abortion, called the ruling a “tremendous victory” in a press release.
“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 court’s ruling said that the state can enforce the “harboring” and “transporting” part of the law, but it cannot enforce the “recruiting” statute. The anti-abortion Republicans who wrote the law did not define “recruiting,” which the appeals court found to be “unconstitutionally overbroad because it prohibits a substantial amount of protected expressive speech.”
This part of the ruling was a “huge victory,” said Wendy Heipt, an attorney for the plaintiffs. It’s the first abortion case at the federal level to acknowledge a person’s right to freely discuss abortion even if obtaining care is illegal in a person’s home state.
“I can’t stress enough how important it is that the most vulnerable people in Idaho ― which are minors in situations that are unsafe or violent ― can now actually turn to trusted adults and learn what their options are,” Heipt told HuffPost.
The panel of judges effectively said Idaho cannot criminalize people who are simply providing information about abortion, including educational counseling, encouragement or how to logistically or financially obtain abortion care. Idahoans are protected by free speech to talk to anyone, including minors, about abortion care ― even if abortion is largely illegal in the state, the court ruled.
The judges used a hypothetical situation in their ruling to portray how slippery the slope would be if the state could prosecute people for “recruiting” minors under this law:
“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. ‘I need an abortion,’ the minor says, ‘and my parents can’t know.’ The driver says: ‘I’m sorry, I can’t drive you there. But, here, take this cash. That should cover the procedure.’ The minor takes the cash, finds a ride to Oregon with another minor, and gets a legal abortion with the money the driver provided. Under Section 18-623, the driver might be prosecuted for ‘recruiting.’ The driver’s expression invited contact, causing the minor to approach and find out how to get a legal abortion. The bumper sticker, and perhaps the offer of cash, arguably persuaded or even induced the minor to have the abortion. The cash also paid for, or ‘procured,’ the abortion. Thus, the driver procured an abortion for the minor, in part by recruiting.”
The ruling on the “recruiting” provision sets some kind of legal standard for other states looking to pass similar laws. Tennessee passed a similar law this year that is currently blocked with a preliminary injunction, and Republicans in Alabama, Oklahoma and Mississippi introduced similar abortion trafficking laws in 2024 that failed. A New Hampshire Republican has already filed a similar abortion travel ban for the state’s upcoming legislative session.
The court’s decision on the recruitment statute also offers some legal basis for future attacks on pro-choice groups that provide abortion counseling or financial aid for abortion.
“Idahoans should be concerned and upset about what the legislators are doing and what the law still does ― absolutely,” Heipt said. “But they should be so relieved that they can still talk about and support abortion.”
Read the 9th Circuit’s decision below:
This article was updated throughout with quotes from Heipt to better reflect the impact of Monday’s ruling.