A lawyer for the state of Idaho on Tuesday urged a federal appeals court to revive a 2023 state law making it a crime to help a minor cross state lines for an abortion without her parent’s consent, which a lower court judge had blocked in November.

“The law is narrow, and one would think, unobjectionable,” Idaho Deputy Solicitor General Joshua Turner told the three-judge panel of the 9th U.S. Circuit Court of Appeals in Seattle.

“It prohibits strange adults from recruiting, harboring or transporting unemancipated minors within Idaho to procure an abortion, but only when that act is done with the specific intent to conceal it from the unemancipated minor’s parents or guardians.”

A federal judge in Boise had blocked enforcement of the law in November while she considers a lawsuit brought by Lourdes Matsumoto, a lawyer and advocate who works with victims of sexual violence, and the Northwest Abortion Access Fund and Indigenous Idaho Alliance, which helps people in Idaho access abortion. They argued that the law interfered with their right to free speech under the First Amendment of the U.S. Constitution.

Their lawyer Wendy Olson said the panel should uphold that order, saying the law “seeks to criminalize an unclear amount of undefined assistance to minors” and amounted to regulation of protected speech and expression because it prevents plaintiffs from telling minors about getting abortions.

Circuit Judges M. Margaret McKeown and John Owens, who were both appointed by Democratic presidents, appeared open to reviving at least part of the law. Circuit Judge Carlos Bea, an appointee of Republican then-President George W. Bush, did not speak during the argument.

McKeown asked several questions during the argument questioning how transporting someone could be speech protected by the First Amendment.

She also asked both sides whether the part of the law against “recruiting” could be blocked, on the grounds that it interferes with speech simply telling minors about accessing abortions, while upholding the prohibitions on harboring and transporting.

Turner said it could, while Olson said that harboring and transporting could still be protected by the First Amendment’s guarantee of freedom of association.

Idaho bans almost all abortions, with narrow exceptions to save the mother’s life and for rape or incest that is reported to police. However, it borders Washington, Oregon and Montana, which allow them.

Under its law, adults who help girls obtain surgical or medication abortions without parental or guardians’ consent would face a minimum of two years in prison if convicted.

The case is one of several challenging laws that criminalize helping residents travel to states where abortion is legal. The U.S. Supreme Court in 2022 overturned Roe v. Wade, the landmark 1973 ruling that had established a nationwide right to abortion.

A group of Alabama healthcare providers and a fund that helps people in the state filed lawsuits last year seeking to block anyone from being prosecuted under state law for helping someone travel out of state for an abortion. The state’s Republican attorney general had suggested that Alabamans who did so could be prosecuted as criminal accomplices. 

© 2024 Thomson/Reuters. All rights reserved.

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