Idaho abortion ban faces unusual legal challenge

MYRNA BROWN, HOST: Coming up next on The World and Everything in It:

Legal battles over abortion trafficking bans.

Those are laws that criminalize transporting a minor across state lines to get an abortion without parental consent.

Idaho has been a trailblazer to pass a variety of pro-life protections like that.

MARY REICHARD, HOST: But on Monday, a judge in Idaho upheld the right ofin-state medical providers to refer patients…including pregnant minors…to out-of-state abortionists. That ruling undermines the state’s abortion ban.

Lawsuits filed last month challenging the trafficking ban put the courts in position to decide the fate of the law.

BROWN: What does this mean for abortion in Idaho, and across the country?

Reporting producer Lillian Hamman has the story.

LILLIAN HAMMAN: The end of Roe v. Wade last year raised all kinds of questions about the future of abortion in America. Two of those questions are “How are women and girls in pro-life states getting abortions elsewhere?” and “who is helping them get there?”

The state of Idaho finds itself at the forefront in responding to those questions. Bordered by pro-abortion states like Oregon, Washington, and California, Idaho boasts a strong abortion ban with exceptions for rape, incest, and health of the mother. On April 5th, Republican Governor Brad Little signed another abortion ban into law, that’s the first of its kind in the nation. Audio here from MSNBC.

MSNBC: A new Idaho law makes it illegal for an adult to help a minor get an abortion without parental consent. It's called the abortion trafficking law…it can mean 2 to 5 years in prison if anyone is convicted

Then, in July, Attorney Lourdes Motsumoto and a coalition of advocacy groups filed a lawsuit against Idaho’s abortion trafficking ban. They claim it violates constitutional speech and travel rights. Adults are forbidden from talking to minors about abortion and can be prosecuted for transporting minors for out-of-state abortions without parental consent. Here’s Idaho House minority leader Ilana Rubel speaking to KTVB-7 after the lawsuit was filed.

RUBEL: Just because the Supreme Court said you can ban abortion does not mean they get to throw the First Amendment out the window and the Fifth Amendment out the window and the 14th Amendment out the window.

Plaintiff Motsumoto also claims the language of the law is too vague to interpret responsibly.

MOTSUMOTO: It's not exactly clear on what you can and can't do and can and can't say to a minor who comes to you and says, I'm trying to get out of the abusive situation. Here's my situation. Can I even give that person all of their options?

But State Representative Barbara Hart clarifies that supporters of the ban say the lawsuit is more an issue of the rights parents have over their children’s medical decisions.

HART: It doesn't criminalize travel. It criminalizes the taking of a child across the border without the parents permission…[1:00] in any other circumstance, we would call this kidnapping.

David Ripley, the Executive director of Idaho Chooses Life, is concerned about the claims made by those suing the state. But he’s also puzzled about the plaintiffs themselves. Along with Matsumoto and the Northwest Abortion Access Fund, the lawsuit was jointly filed by the Indigenous Idaho Alliance organization, and a gender advocacy group called The Legal Voice.

RIPLEY: It's a strange collection of plaintiffs in my opinion…this is an abortion trafficking bill. It's specific to abortion. Why would an LGBTQ group get involved in an issue like that?

But since the overturning of Roe, Ripley has been responding to new legal developments in the fight for life…and not just life in the womb.

RIPLEY: We're not just talking about abortion in this lawsuit, we're talking about…Concepts like bodily autonomy, sexual freedom. They basically deny the right of parents altogether to manage the health and well being and sexual activities of their children…The child by definition is incapable of really comprehending and appreciating circumstances and complications and risks and potential benefits…There is no age, attached to any of these views about bodily autonomy and the right to who they talk to a right to make decisions, the right to be trafficked across state lines by strangers essentially.

If the lawsuit prevails, Ripley says the legal precedent could lay the groundwork for advocates of transgender procedures to transport children to states supporting so-called gender affirming care.

RIPLEY: [11:31] Again, without parental knowledge, or consent…[13:45] they have taken it upon themselves, to be the arbiter of what is good and bad for a child for whom they have no legal responsibility, and for whom they have no accountability with respect to the implications of what happens afterwards.

Ripley recognizes that not every child’s parent or guardian is safe. Unfortunately, some may even be perpetrators of the pregnancy. Ripley believes the ban also serves to protect those children by bringing their circumstances to the light.

RIPLEY: There are real situations out there, no doubt about it…But the fact is you have a legal duty not just to deal with the pregnancy, you have a legal duty to deal with that child and get that child out of that circumstance…And unless you involve law enforcement, you're treating the symptom…The only hope for that child is law enforcement investigating…And holding people accountable…There's a clear duty under the Idaho law…to intervene in a way that's actually appropriate to make sure that law enforcement figures out what's happening to that child.

The lawsuit against Idaho’s abortion trafficking ban could take months to resolve. Monday’s ruling restored the ability for any woman to get a referral for an abortion out of state. But physically transporting minors to have an abortion without parental consent remains illegal…for now.

Reporting for WORLD, I’m Lillian Hamman.

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