Ninth Circuit Partly Revives Enforcement of Idaho Abortion Trafficking Law
- December 06, 2024
A Ninth Circuit panel largely walked back a preliminary injunction enjoining Idaho from enforcing its abortion trafficking statute, which criminalizes “recruiting, harboring, or transporting” a minor with the intent to help them obtain an abortion without a parent’s knowledge.
The appeals court found the challenge was unlikely to succeed on the merits of the claim that the statute’s prohibition on “harboring” and “transporting” violated the First Amendment because the conduct at issue was not expressive on its face. However, the panel held the preliminary injunction should remain in place as to the “recruiting” prong, which likely unconstitutionally infringed protected speech, the panel said.
The Ninth Circuit remanded to the district court to modify the preliminary injunction in accordance with the opinion.
Idaho Code § 18-623 defines the crime of “abortion trafficking” as “procur[ing] an abortion” or “obtain[ing] an abortion-inducing drug” for an unemancipated minor by “recruiting, harboring, or transporting [a] pregnant minor” with the intent to conceal the abortion from the minor’s parents.
An Idaho attorney and two advocacy organizations that seek to counsel pregnant minors and provide support to help them access legal abortions in other states challenged the statute, arguing it violated the First Amendment and was void for vagueness.
The district court preliminarily enjoined enforcement of Section 18-623 after finding the law likely was void for vagueness and violated the challengers’ First Amendment rights to speech and association.
“Despite its awkward construction,” the Idaho abortion trafficking statute “does not fall afoul of the vagueness line,” the Ninth Circuit said. “Certain conduct is either clearly proscribed by the statute, such as providing transportation and shelter to minors seeking abortions in other states; clearly not proscribed by the statute, such as soliciting donations to organizations that support pregnant minors seeking abortions; or, in the case of conduct that might be understood as ‘recruiting,’ is subject to an ‘imprecise but comprehensible normative standard.’”
Turning to the First Amendment claim, the appeals court was not convinced that the “harboring” or “transporting” acts covered by Section 18-623 are expressive. The Ninth Circuit therefore reversed the injunction as to these statutory provisions.
However, the appeals court agreed with the lower court that the “recruiting” prong likely violated the First Amendment by prohibiting “a substantial amount of protected speech relative to its plainly legitimate sweep.” The Ninth Circuit therefore affirmed the preliminary injunction of that statutory provision.
Matsumoto v. Labrador, No. 23-3787 (9th Cir. Dec. 2, 2024).