Idaho already has some of the most extreme abortion restrictions on the books, with nearly all abortions banned in the state and an affirmative defense law that essentially asserts any doctor who provides an abortion is guilty until proven innocent. And now Idaho Republicans have set their sights on hindering certain residents from traveling out of state to get an abortion.
House Bill 242, which passed through the state House and is likely to move quickly through the Senate, seeks to limit minors’ ability to travel for abortion care without parental consent. The legislation would create a whole new crime — dubbed “abortion trafficking” — which is defined in the bill as 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 minor. “Recruiting, harboring, or transporting the pregnant minor within this state commits the crime of abortion trafficking,” the legislation adds.
Abortion trafficking would be a felony, and those found guilty would face two to five years in prison. The legislation also includes a statute allowing the Idaho attorney general to supersede any local prosecutor’s decision, preemptively thwarting any prosecutor who vows not to enforce such an extreme law.
Since the bill would criminalize anyone transporting a pregnant minor within the state to get an abortion or to obtain medication abortion, it could apply to an aunt who drives a pregnant minor to the post office to pick up a package that includes abortion pills. Or it could target an older sibling who drives a pregnant minor to a friend’s house to self-manage an abortion at home. Either violation would carry a minimum sentence of two years in prison.
The legislation doesn’t actually say anything about crossing state lines, but Republican lawmakers are creative. Most pregnant people in Idaho are not traveling to obtain an abortion elsewhere in the state, since nearly all abortions are illegal in Idaho; they’re traveling to the border with the intent of crossing state lines, likely into Washington, Oregon or Montana, to get an abortion there.
“Technically, they’re not criminalizing people driving in Washington state with a minor. The crime is the time that someone is driving the minor in Idaho,” said David Cohen, a law professor at Philadelphia’s Drexel University whose work focuses on constitutional law and abortion policy.
“They’re going to say what they’re doing is just criminalizing actions that take place completely within Idaho, but in practice what they’re criminalizing is the person helping the minor,” Cohen, who also litigates abortion-related cases with the Women’s Law Project nonprofit, told HuffPost.
State Rep. Barbara Ehardt (R), one of the sponsors of the abortion trafficking bill, said plainly that the intent of the legislation is to limit minors’ ability to travel out of state without parental consent.
“It’s already illegal to get an abortion here in the state of Idaho,” she told HuffPost. “So, it would be taking that child across the border, and if that happens without the permission of the parent, that’s where we’ll be able to hold accountable those that would subvert a parent’s right.”
In the past, a bill like this would have been brushed aside as political fodder, never to become law. But Idaho has seen a Christian white nationalist insurgency in recent years, helping to create a Legislature that’s quickly gone down the far-right rabbit hole — including by introducing legislation that would bring back firing squad executions, or make it a crime punishable by life in prison for a parent to get gender-affirming care for their transgender child.
“My colleagues are just rabid about denying all access to abortion care.”
– Idaho Senate Minority Leader Melissa Wintrow (D)
Since the Supreme Court overturned Roe v. Wade in June, the country has yet to find the floor on how extreme abortion restrictions can get — and Republicans in Idaho are actively testing the waters.
“The far right has an incremental plan. It’s death by a thousand cuts on many things, but they’re especially unrelenting on abortion,” Idaho Senate Minority Leader Melissa Wintrow (D) told HuffPost. “My colleagues are just rabid about denying all access to abortion care. It’s really harmful to women, and it’s harmful to our state.”
The abortion trafficking bill is rapidly advancing through the Legislature. It passed along party lines in the state House (57-12-1) earlier this month with less than 10 minutes of floor discussion. The final roadblock for the bill was the Senate State Affairs Committee, which on Monday agreed to hold a full Senate vote. A handful of amendments, which don’t substantively change the bill, were added on Monday, meaning the bill will head back to the House for a full vote after the Senate vote takes place. It’s extremely likely to pass in the Senate, where Republicans outnumber Democrats 4 to 1, and in the House which has already passed the bill once. Gov. Brad Little (R), a devout anti-abortion advocate and the first governor to enact a copycat of Texas’ infamous bounty hunter abortion restriction, is likely to sign the bill into law.
Wintrow is prepared to fight the legislation in the Senate, but she’s only one of 18 Democrats in a Legislature of 105 members. She’s not optimistic, despite being acutely aware of just how devastating a bill like this could be for minors, physicians and the greater health care system in Idaho.
“It feels terribly inevitable that this bill will pass,” said Wintrow, who has been teaching gender studies at Boise State University for over 20 years. “That’s what we’re facing. That’s my fear. That’s the pit in my stomach.”
Ehardt stressed to HuffPost that the bill is about parental rights.
“What we want to make sure of is that parents are the ones who are in charge of their children. Parents are the ones who need to be involved in helping to make these decisions,” she said.
“A parent absolutely still has the right to take their child across the border and get an abortion,” Ehardt added. “The parent still has the right to cede that power and authority to someone else, such as a grandparent or an aunt, to take that child, should they be pregnant, across the border and get an abortion.”
The language in the Idaho legislation is ripped nearly word for word from a model law published by the National Right to Life Committee, a leading anti-abortion group, just weeks before Roe fell. Idaho Right to Life, a state-level organization of National Right to Life, crafted the bill that Ehardt is leading through the Legislature.
What was once viewed as an extremist’s dream agenda is now very real.
“This is the first of what will probably be many states that pass provisions like this because it does seem to be something that the movement wants, at least for minors. Whether they expand it to adults, too, we will see,” Cohen said. “But at least for minors, this seems to be part of the blueprint. And Idaho is now the first state that’s putting it into reality.”
Most teenagers and adolescents voluntarily include at least one parent in abortion decisions. But for the minority of those who don’t, it’s often for good reason. Studies show that requiring parental involvement can increase the risk of harm or abuse, delay care and lead minors to seek out dangerous alternatives. The risk of abuse is especially acute for LGBTQ kids.
And parental consent laws are common. Currently, 36 states require some kind of parental involvement for a minor to receive abortion care. Almost all of those states have a judicial bypass process that allows a minor to obtain approval from a court without alerting their parents, although this procedure is time-consuming and confusing, and it puts up many logistical barriers for young people who have few resources.
Idaho state Rep. Lauren Necochea (D) brought up this issue during the brief discussion on the House floor this month before the bill passed.
“There are cases where a minor might not feel safe telling their parents they need abortion care,” she said. “It could be an abusive family situation. It could be any number of circumstances that make it feel unsafe for a 17-year-old to go to her parents, but maybe she has a big sister who can help her out,” Necochea added, noting that the bill would prohibit a minor from talking to a sibling or other trusted relative about plans to obtain an abortion.
“This is the first of what will probably be many states that pass provisions like this. … And Idaho is now the first state that’s putting it into reality.”
– David Cohen, a Drexel University law professor
Several national health groups agree that a minor should not be required to involve their parents in decisions to obtain an abortion, including the American Medical Association, the American College of Obstetricians and Gynecologists, and the American Academy of Pediatrics.
But targeting minors is why such legislation works. They have fewer rights than adults in some situations, allowing lawmakers to litigate away critical health care for adolescents. (Just look at what Florida, Tennessee and a dozen or so other states are doing to gender-affirming care for trans youth.)
“It’s a very creative way of getting around the legality of this,” Rebecca Wang, legal support counsel at the reproductive justice nonprofit If/When/How, told HuffPost about the Idaho bill. “The phrasing of this law is very strategically trying not to impede on the right to travel but focusing more on the state’s right to interfere with young people’s medical decisions. I certainly see this as part of the trend of chipping away at the right to travel.”
For her part, Ehardt said she took on this bill because of her passion for parental rights. She is not looking to limit any adult’s ability to travel across state borders to get abortion care for themselves.
“I can’t speak for what any organization or someone else may try to do, but as far as I’m concerned this is a way to handle parental rights,” she said. “I am not interested in carrying legislation to try to restrict someone’s ability, if they are pregnant and they are an adult, to go somewhere else [out of state].”
Similar to other abortion restrictions, the legality of the bill is suspect. And since people travel around Idaho and across state lines every day, it’s unclear how it would be enforced. Between the legal jargon and constant confusion around abortion limitations, the legislation is likely to simply have a chilling effect.
“This is another one of those laws that seeks to create an atmosphere of not being able to trust the people around you. They [Republican lawmakers] are relying on a network of people around a person seeking care to potentially report them to authorities,” Wang said.
“The very real effect we will see is adults who are supportive of a young person’s right to get an abortion are going to be quite hesitant to offer that assistance, and be concerned that they might be prosecuted and go to jail as a result of this,” she added. “That’s concerning because young people, more than anybody, need additional community support to access services.”
Restricting anyone’s ability to travel looks and sounds unconstitutional. But in the U.S. — a country where the Supreme Court repealed nearly 50 years of precedent, lawmakers are vowing to surveil and prosecute pregnant people, and a lawsuit with no scientific basis is threatening access to medication widely used for abortion and miscarriage care — what’s constitutional or unconstitutional is up for debate.
“There is nothing clear about current Supreme Court case law that mandates the result that I think is right, which is that this is unconstitutional,” Cohen said. “And because it’s not clear from the case law, I think motivated judges are going to have the ability to decide one way or the other based on how they feel about abortion.”
In his concurring opinion for Dobbs v. Jackson Women’s Health Organization, Supreme Court Justice Brett Kavanaugh did state that the right to interstate travel is still constitutionally protected. But since the abortion trafficking bill is crafted in a way that only pertains to travel inside Idaho, lawmakers may have found a loophole.
Rebecca Gibron, the CEO of a Seattle-based Planned Parenthood affiliate, told HuffPost that her organization will meet the legal battle wherever it is.
“This wouldn’t be the first time that the Idaho Legislature and the governor put bills into law that are unconstitutional. We have challenged them and won,” said Gibron, who heads Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky.
“There’s no way this bill is constitutional, and if it’s passed there will absolutely be a legal battle. Idaho can bet on that.”