(CN) — The Ninth Circuit Court of Appeals heard oral arguments Tuesday in the state of Idaho's challenge to a preliminary injunction of a new law prohibiting what it calls "abortion trafficking."
Idaho already has one of the strictest abortion bans in the country, with exceptions only when the mother's life is in danger. In April 2023, state lawmakers went even further and passed House Bill 242, which made it a crime for an adult to assist a minor in obtaining an abortion or abortion medication in another state without their parent’s consent, by either "recruiting, harboring, or transporting the pregnant minor" within the state.
Violating the law carries a penalty of two to five years in prison and opens up the perpetrator to civil liability — that is, they can be sued by the minor's parents. Either the county prosecutor or state attorney general can file the criminal charges.
Two groups — Northwest Abortion Access Fund and Indigenous Idaho Alliance — and lawyer Lourdes Matsumoto sued Idaho Attorney General Raúl Labrador, claiming the new law was unconstitutionally vague and infringed on First Amendment rights to freedom of speech, assembly, association and petition.
In November, a federal judge agreed to issue a preliminary injunction, barring the the attorney general from enforcing most of the law.
“The state can, and Idaho does, criminalize certain conduct occurring in its own borders such as abortion, kidnapping and human trafficking,” U.S. Magistrate Judge Debora Grasham wrote in the ruling. “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."
On Tuesday, plaintiff attorney Wendy Olsen told the panel of judges that HB 242 "seeks to criminalize an unclear amount of undefined assistance to minors" and amounted to "content-based regulation of free speech and expression," since it "prohibits plaintiffs from saying things that the state disagrees with."
Acting Solicitor General Josh Turner put things differently.
He argued that the law "prohibits strange adults from recruiting, harboring or transporting un-emancipated minors within Idaho to procure an abortion," an act he said amounts to "trafficking minors."
U.S. Circuit Judge John Owens, a Barack Obama appointee, interrupted Turner to question his use of the word "trafficking."
"I was a prosecutor," Owens said. "I'm familiar with narcotics trafficking and arms trafficking. The statute is not talking about selling kids to have abortions, correct?"
"No," Turner answered. "It's the movement of persons."
"Normally, 'trafficking' involves something for profit," Owens said.
"Not necessarily," Turner said, citing as an example the act of transporting a minor across state lines for sexual purposes.
"Almost always," Owens said back.
Both Owens and U.S. Circuit Judge M. Margaret McKeown, a Bill Clinton appointee, were also curious about the word "recruit." What did it mean, exactly? If, for example, a counselor at a high school or health clinic tells a minor about different states where abortion is legal — is that recruitment?
"It may be," Turner said, sounding unsure himself.
"I have to say, there’s about 20 different definitions of ‘recruitment’ by the state of Idaho," McKeown said.
Turner offered that there had to be some connection between the recruitment and the harboring and transporting, as well as the eventual "procurement" of the abortion.
What about, Owens wanted to know, if someone were caught in a sting operation where someone intended to recruit someone for an out-of-state abortion, but in fact the supposed minor is really in her early 20s, and the abortion never happens. Can the recruiter be prosecuted?
"Yes, it would still be a violation," Turner said.
As for the bans on harboring and transporting a minor, the judges seemed to think those might fall within the boundaries of the constitution.
"Transporting, taking a minor, within the state of Idaho — where's the speech in that?" Judge McKeown asked Olsen, the plaintiffs' attorney.
"The right of association is implicated," Olsen said.
The two judges (a third, U.S. Circuit Judge Carlos Bea, a George W. Bush appointee, was watching the hearings remotely and couldn't question the attorneys) suggested they might want strike a compromise: allow much of the law to stand, except for the ban on "recruiting."
Was recruiting, they asked Olsen, protected by the First Amendment?
Olsen said it was. "For speech to be protected, you don’t have to have a large audience," she said. "It is speech about a topic of public importance."
Judge Owens posed another hypothetical: Say Idaho's age of consent is 18, and in a nearby state, it's 14. Would it be illegal to take someone under 18 across state lines to be married?
Olsen said no. "I don’t think you can prosecute that statute," she said.
The judges took the matter under submission.
Last month, the U.S. Supreme Court heard oral arguments in a challenge to parts of its strict abortion ban. That ruling is expected by the end of June.
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