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Federal judge orders temporary restraining order on Idaho’s ‘abortion trafficking’ law

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State cannot create law ‘muzzling the speech and expressive activities,’ judge says

A U.S. District Court decided Wednesday that it would temporarily block enforcement of Idaho’s “abortion trafficking” law, which took effect in May after Idaho legislators voted on its passage during the 2023 legislative session.

In the latest decision of Matsumoto v. Labrador, U.S. Magistrate Judge Debora K. Grasham granted a temporary restraining order against the “abortion trafficking” statute in House Bill 242, preventing it from being enforced.

According to House Bill 242, “an adult who, 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 the pregnant minor to use for an abortion by recruiting, harboring or transporting the pregnant minor within this state commits the crime of abortion trafficking.”

If enforced, those convicted of “abortion trafficking” would face a penalty between two to five years in prison.

In July, Lourdes Matsumoto, the Northwest Abortion Access Fund and the Indigenous Idaho Alliance — all of whom provide assistance to pregnant patients to access legal abortion in neighboring states — filed the lawsuit against Idaho Attorney General Raúl Labrador alleging the law restricts freedom of speech, the right to travel and the right to freely associate.

Grasham approved and rejected parts of Labrador’s motion to dismiss the case. She dismissed a section of the lawsuit claiming that the law infringes upon the right to intrastate travel. However, she denied the remaining aspects of Labrador’s motion to dismiss.

In her concluding paragraph of the temporary restraining order decision, Grasham said the lawsuit is not about the right to an abortion, but rather it is about the rights to freedom of speech, expression, due process and parental rights.

“The state can, and Idaho does, criminalize certain conduct occurring in its own borders such as abortion, kidnapping, and human trafficking,” Grasham said. “What the state cannot do is craft a statute muzzling the speech and expressive activities of a particular viewpoint with which the state disagrees under the guise of parental rights, as Idaho Code Section 18-623 does here.”

Judge says plaintiffs have ‘plausible’ First and 14th Amendment claims

The judge said the abortion trafficking law is a “content-based regulation” of protected speech and expression, and plaintiff’s are likely to show success on their First Amendment claims.

“The statute plainly regulates expression based on content by restricting adults from engaging in activities that advocate, assist, and communicate information and support to pregnant minors about legal abortion options,” Grasham said in the decision, adding that many of those receiving abortion assistance from the plaintiffs are survivors of abuse and minors.

Grasham said that the statute’s restriction on “recruiting” undermines the plaintiffs’ speech and expression about abortion as a reproductive option.

The court also ruled that Labrador failed to show that the law serves a compelling state interest.

“The statute’s broad restrictions on ‘procuring’ or ‘obtaining’ abortion services, and ‘recruiting, harboring, and transporting’ encompass a wide swath of protected activities and are not narrowly tailored to serve the state’s stated interests in protecting parental rights,” Grasham said.

In addition to seeing merits in the plaintiffs’ First Amendment claims, Grasham said plaintiffs have shown a likelihood of success on their 14th Amendment claim, that the statute fails to provide a reasonable person with fair notice of what conduct is forbidden and what activities are lawful, and allows for arbitrary enforcement.

Court partially grants Labrador’s motion to dismiss case

While the court deemed the plaintiff’s First and 14th Amendment claims as “plausible,” Grasham said the court does not recognize the right to intrastate travel or freedom of movement as a fundamental right.

“While the court does not find plaintiffs’ intrastate travel claim is brought in bad faith or frivolous given the caselaw from other circuits, there is simply no authority in this circuit at this time upon which to recognize a liberty interest in the right to intrastate travel, let alone a fundamental right. For this reason, the court will grant defendant’s motion and will dismiss the third claim for relief.”

Grasham’s decision comes two months after parties in this case gave their oral argument in district court in September.

Abortion is almost entirely outlawed at any point during pregnancy in Idaho, except to save the pregnant patient’s life and in cases of rape and incest, where individuals must present a police report verifying the crime and be within the first 12 weeks of pregnancy.

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States Newsroom reproductive rights reporter Kelcie Moseley-Morris contributed to this story.

This story was originally published by the Idaho Capital Sun.