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Judge may rule soon on whether Idaho’s ‘abortion trafficking’ law can be enforced

Brian Turner via flickr

U.S. Magistrate Judge Debora K. Grasham is expected to decide in the coming weeks whether to grant a request to temporarily bar Idaho Attorney General Raúl Labrador from enforcing the state’s so-called “abortion trafficking” law as alawsuit over its constitutionality proceeds in federal court.

Grasham heard the case in district court in Boise on Thursday afternoon.

The plaintiffs in the lawsuit are Lourdes Matsumoto, an attorney who assists victims of domestic and sexual violence in southwestern Idaho, including minors, as well as the Northwest Abortion Access Fund and the Indigenous Idaho Alliance. Both organizations assist Idahoans, including minors, with finding access to legal abortion care in surrounding states and in many cases offering financial assistance for the procedure.

The plaintiffs argue the law restricts freedom of speech, the right to travel and the right to freely associate, including the language in the law that prohibits obtaining an abortion by “recruiting, harboring, or transporting” a minor.

The Idaho Legislature passedHouse Bill 242 at the end of March that created the new law to punish an adult who helps a minor seek an abortion in another state or obtain medication that will induce an abortion. The law states if the adult intended to conceal the abortion from the parents or guardian of a pregnant minor, they are subject to a felony punishable by two to five years in prison. Even if a parent or guardian gave permission, the adult who aided the minor could still be prosecuted and use that defense in court, according to the bill text.

Wendy Olson, the attorney representing the plaintiffs, said the way the statute is written is too vague to allow people like Matsumoto and others who assist minors to know when they are or aren’t potentially breaking the law. And by making them question whether a conversation about how to access an abortion legally in a nearby state could land them in jail, the law is effectively restricting their First Amendment rights.

Judge asks state attorney to clarify how trafficking law could be violated

Idaho has a near-total ban on abortions at any stage of pregnancy, with exceptions for rape and incest victims who provide a police report documenting the crime and who are no more than 12 weeks pregnant. It is surrounded by several states where abortion is legal, including Washington, Oregon and Montana.

Washington allows minors to obtain an abortion without parental permission, and Oregon requires parental consent for girls under the age of 14.

The law, which took effect May 1, also gives sole discretion to the Idaho attorney general to bring charges if a county prosecutor declines to do so. Legislators who supported the bill and Gov. Brad Little, who signed it into law, framed it as a parental rights bill that did not restrict interstate travel.

Deputies from Labrador’s office continued to argue that point Thursday. Deputy Division Chief James Craig said the case is about parental rights and who has the authority to make decisions about the care and custody of children. He said if the issue was anything other than abortion, the lawsuit would never have been filed.

Craig said there is nothing stopping minors from obtaining an abortion in another state, but an adult helping to “recruit, transfer or harbor” the minor could violate the law if there was intent to conceal the action from the child’s parents.

Grasham asked Craig to clarify what types of actions would constitute a violation of the law, and Craig said he didn’t want to get into hypotheticals, but if someone took specific steps to prevent the minor from informing their parents about the abortion, then that would break the law.

“I’m just going to repeat the statute, because it’s plain,” Craig said. “Did they try to inform the parents or not? Do they have a pattern of purposely not informing the parents? Did this child have an opportunity to talk to the parents and (the adult) took that away?”

Olson argued that the parental rights argument is a “selective rationale” because in the same legislative session, the Idaho Legislature passed House Bill 71, barring those under 18 from seeking gender-affirming care. The families of two transgender teenagers are suing the state over that law as well.

Motion to dismiss case won’t be considered right away, judge decides

At issue during the hearing was also the question of whether Labrador would pursue a case in any county throughout the state. Although the law gives him that power, Craig said Labrador has “disavowed” that authority and will only step in with a referral from a county prosecuting attorney. No prosecutors have referred any cases, he said, so the attorney general has no authority to litigate cases himself.

But Grasham pointed out that under existing case law about prosecutorial authority, the Idaho attorney general does have that right, whether or not the current elected official intends to use it.

Olson agreed, adding, “If he disavowed it with the stroke of a pen, he can also undo it with the stroke of a pen.”

In addition to the injunction request, the attorney general’s office filed a motion to dismiss the case on Tuesday. Olson called that a delay tactic, as Grasham would have had to extend the case timeline into mid-October before issuing a ruling if the two motions were to be considered together.

Lincoln Davis Wilson, chief of Labrador’s civil litigation and constitutional defense division, told Grasham it was not an attempt to delay the proceedings and instead said the office is overwhelmed by nine ongoing lawsuits in district court against the state over its newly enacted laws, including one other related to rights for transgender people and two other abortion-related cases.

Grasham decided not to consider the motions simultaneously and will instead make a decision first about the preliminary injunction, which could come within the next few weeks.

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This story was originally publishedby Idaho Capital Sun.