Complaint alleges law restricting travel for minors is unconstitutional and unclear
By Kelcie Moseley-Morris, Idaho Capital Sun, July 11, 2023
Several advocacy organizations and a civil rights attorney filed a lawsuit against Idaho Attorney General Raúl Labrador’s office Tuesday alleging a law that criminalizes the act of transporting minors across state lines to obtain an abortion violates constitutionally protected rights and is too vague to be enforceable.
The federal lawsuit asks the Idaho District Court to grant a temporary injunction that would block the law from being enforced while the case proceeds.
The Idaho Legislature passed House Bill 242 at the end of March that created a new law dubbed “abortion trafficking” 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.
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.
“While we don’t comment on pending litigation, our office is always prepared to vigorously defend the constitutionality of statutes duly passed by the Legislature,” said Emily Kleinworth, spokesperson for Labrador’s office, in an emailed statement.
Law does not account for complicated family situations, Idaho plaintiff says
Lourdes Matsumoto, an attorney who assists victims of domestic and sexual violence in southwestern Idaho, including minors, is the first named plaintiff in the lawsuit. Her work includes representing victims of sexual violence who become pregnant, according to the complaint, and Matsumoto said she now feels limited in what advice she can give to her clients.
“There’s a lot of fear of what they even want to tell me. I have a little bit extra protection because as their attorney we have privilege, but it’s still illegal potentially for me to tell them what they can do, it’s still potentially illegal for me to direct them to programs out of state,” Matsumoto told States Newsroom.
Matsumoto said the law does not account for many complicated situations and family structures where parents may be abusive or otherwise absent, including immigrant families and situations where a minor lives in Idaho and their parents are in a different country.
“We try to reach communities that have been traditionally marginalized, and those people are already afraid of law enforcement and seeking help,” Matsumoto said. “By the time those people reach out and trust one individual, one adult, that’s a huge step. So if you are not able to be trusted, the whole community is going to go backwards, and they’ll go back and tell their community it’s not a safe place.”
Plaintiff Northwest Abortion Access Fund assists people in Idaho, Oregon, Washington and Alaska who need abortion care with financial support and transportation. According to the complaint, the fund’s volunteers and staffers assisted 768 people in those states within the past year, and 166 of them were Idahoans, including minors.
The third plaintiff is the Indigenous Idaho Alliance, a nonprofit organization led by Nez Perce Tribe member Tai Simpson. Simpson and others affiliated with the alliance have assisted pregnant people, including Idaho minors, with accessing abortion care. The complaint says the abortion access fund and the alliance both want to continue providing that assistance to minors but fear prosecution under the trafficking law.
Complaint argues law infringes on basic rights
The groups are represented by Idaho-based attorney Wendy Olson, Legal Voice attorney Wendy Heipt, and attorneys for The Lawyering Project. Legal Voice is a Seattle-based gender equity advocacy organization.
Heipt said community members working in Idaho have reached out to Legal Voice over the past few months for help navigating the law and are genuinely unsure how to avoid crossing any lines.
“Our belief is that although this lawsuit is targeting adults, it’s actually restricting minors, and if this is allowed to stand, they will move to adults,” Heipt told States Newsroom. “What’s important is that people understand once they start infringing on your basic rights as a U.S. citizen because someone disagrees with what you’re doing, there’s no end to it. That is a pretty slippery slope.”
According to the complaint, 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 statute) criminalizes only speech that supports those seeking abortion care,” the complaint states. “Under the First Amendment, the ‘government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’”
Matsumoto said those arguments are why the law is about more than ideological perspectives on the morality of abortion or the wisdom of an abortion ban.
“If you take the word ‘abortion’ out of it, these are very problematic issues that restrict people’s rights,” she said. “I don’t think that’s getting the attention it deserves.”
The lawsuit is assigned to District Judge Debora K. Grasham and will proceed in Idaho District Court in the coming weeks.
FEATURED IMAGE: Several advocacy organizations and a civil rights attorney filed a lawsuit against Idaho Attorney General Raúl Labrador’s office Tuesday alleging a law that criminalizes the act of transporting minors across state lines to obtain an abortion violates constitutionally protected rights and is too vague to be enforceable. (Illustration courtesy of Getty Images)
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