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First of a Kind Idaho Abortion Trafficking Law – What the Law Does and Does Not Do

by | May 24, 2023

By Jennifer Popik, J.D., Federal Legislative Director, National Right to Life

Editor’s note. This was originally published in Sebastian’s Point by the Society of St. Sebastian.

On April 5, 2023, Governor Little of Idaho signed a bill designed to protect minor girls in the state of Idaho.  HB 242 makes it illegal for an adult to transport a pregnant minor within the state of Idaho for the purpose of obtaining an abortion with the intent to conceal the abortion from the parents or guardian of the minor. The law took effect May 5, 2023.

Idaho is the first state to make abortion trafficking of minors illegal.

The Dobbs v. Jackson Supreme Court decision in the summer of 2022 overruled Roe v. Wade and returned the abortion issue to Congress and the state legislatures. Shortly following the landmark decision, National Right to Life created comprehensive model legislation, writing, “… the abortion industry can be expected to exploit existing State laws on telehealth and the proximity of States with less protective laws to circumvent pro-life laws in a particular State.  Laws preventing telehealth laws from being exploited for unlawful abortions and new laws to prevent the trafficking of minors for unlawful abortions will be needed.”[1]

For those who work on protective pro-life laws, misinformation about what a state or federal abortion law actually does is a common occurrence.  That said, the headlines surrounding the recently-enacted law in Idaho (HB 242) were particularly egregious in misrepresenting the state law and what it really does.

Two sample headlines surrounding HB 242 included one from NBC news, “Idaho becomes one of the most extreme anti-abortion states with law restricting travel for abortions.”[2] Another from the Huffington Post reads, “Idaho Passes Law to Restrict Interstate Travel for Abortion Care for Minors.”[3]

These headlines are misleading on several fronts.  No one, neither an adult nor a minor, is restricted from traveling out of Idaho for an abortion. While it is true that Idaho protects the preborn throughout gestation within its state, nothing prohibits an adult traveling for an abortion, nor a minor traveling herself.[4] What is prohibited is an adult transporting her within Idaho state lines IF the intent is to conceal it from her parents.

Justice Brett Kavanaugh, in a concurring opinion in the Dobbs case, directly addressed the issue of interstate travel.[5] “May a state bar a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”

David Crary of the Associated Press explained the Idaho bill accurately, writing, “To sidestep violating a constitutional right to travel between states, Idaho’s law makes illegal only the in-state segment of a trip to an out-of-state abortion provider.”[6]

The plain language of the bill says nothing about crossing state lines.  Nor does it prevent a minor herself from crossing a state line.  It simply prevents an adult from transporting a minor within Idaho for the purpose of obtaining an abortion with the intent to conceal it from her parents.  The law also prevents an adult from assisting in procuring an illegal abortion within the state, for example, by obtaining and providing her with chemical abortion drugs within the state.    

Further, neither this particular law nor the pro-life movement is attempting to punish a woman or girl.  Neither the Idaho law nor any other proposed piece of legislation is attempting to punish or prevent a woman or minor themselves from traveling.

In May of 2022, prior to the U.S. Supreme Court decision in Dobbs, more than 70 state, national, and international pro-life organizations urged legislators to promote life-affirming legislation that does not seek to criminalize women.[7] From the letter:

As national and state pro-life organizations, representing tens of millions of pro-life men, women, and children across the country, let us be clear:  We state unequivocally that we do not support any measure seeking to criminalize or punish women and we stand firmly opposed to include such penalties in legislation.

We are America’s leading advocates for life. We come from very different backgrounds and perspectives, but we are united in our mission to protect unborn children and American women from the greed of the abortion industry. We have been in this fight for decades – many of us have dedicated our lives to this cause. We understand better than anyone else the desire to punish the purveyors of abortion who act callously and without regard for the dignity of human life. But turning women who have abortions into criminals is not the way.

The Idaho law is not seeking to punish women or ban travel.  It is preventing a life-altering and potentially serious abortion procedure from being concealed from a minor girl’s parents.

This important legislation in Idaho seeks to build on the long and legally permissible ability of states (even under Roe v. Wade) that seek to involve parents in the care of their children. Most parental involvement laws require that abortionists either notify, or obtain consent, or both notify and obtain consent, of a parent or guardian before a minor girl has an abortion.

Studies continue to show the positive impacts these laws have in significantly reducing the rates of abortion, birth, and pregnancy rates among minors.[8] According to figures from the CDC, teenagers continue to account for a smaller and smaller proportion of the abortions performed in the U.S. 

In the earliest days of legal nationwide abortion, teens made up roughly a third of those seeking abortions. By contrast in 2020, females 19 and under represented only 8.5% of the abortions reported to the CDC.

Overall drops in abortion, abortion rates, and ratios are an indication that pro-life policies and legislation are working, and that fewer women are seeing abortion as the solution to their problems. The particular and significant drop among teenagers is an indication that parental involvement legislation has been effective.

Governor Little, in signing this legislation into law, is protecting minor girls from those who would deny them the counsel of their parents. Idaho’s HB 242 would seek to prevent an abortion—whether surgical or procured using abortion drugs—from being performed on a minor without the knowledge of her parents or guardians.  Parents have long and established rights to be involved in decisions regarding their child’s well-being and HB 242 seeks to protect that right.

_____________________

[1] See https://nrlc.org///uploads/files/NRLCPost-RoeModelAbortionLaw.pdf

[2] See https://www.nbcnews.com/health/womens-health/idaho-most-extreme-anti-abortion-state-law-restricts-travel-rcna78225

[3] See https://www.aol.com/news/idaho-passes-law-restrict-interstate-001828236.html

[4] Idaho enacted a trigger law that protects unborn children throughout gestation; it became effective on August 25, 2022. Idaho also enacted a heartbeat law and a heartbeat trigger law; these laws were challenged and upheld by the Idaho Supreme Court in Planned Parenthood Great Nw. v. State (January 2023).

[5] See https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

[6] See https://apnews.com/article/idaho-abortion-minors-criminalization-b8fb4b6feb9b520d63f75432a1219588

[7] See https://nrlc.org///uploads/communications/051222coalitionlettertostates.pdf

[8] New, Michael J. “How the Legal Status of Abortion Impacts Abortion Rates.” Charlotte Lozier Institute, May 23 (2018). https://lozierinstitute.org/how-the-legal-status-of-abortion-impacts-abortion-rates/

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