The Idaho State Capitol building in Boise on March 23, 2021. (Otto Kitsinger for Idaho Capital Sun)
Editor’s note: This article has been updated to correct the effects of House Bill 242, which is separate from the civil enforcement aspects of Idaho’s civil enforcement abortion law.
Idaho Senate Republicans overwhelmingly passed a bill making it a crime punishable by two to five years in prison to take a minor out of state for abortion care without parental permission.
The House of Representatives concurred with amendments, sending the bill to Gov. Brad Little’s desk for signature or veto.
House Bill 242 creates a new section of Idaho law that defines the act of an adult helping a minor seek an abortion in another state or obtaining medication that will induce an abortion as “abortion trafficking.”
Under the legislation, Idaho Attorney General Raúl Labrador will have the authority and “sole discretion” to prosecute a person for violating any aspect of Idaho’s criminal abortion laws if the prosecuting attorney in the respective county refuses to bring charges.
Sen. Todd Lakey, R-Nampa, sponsored the bill on the Senate floor and said the bill also provides an affirmative defense in court if the parent or guardian of the minor gave permission.
“We have the authority and the obligation and the opportunity to establish criminal laws in Idaho,” Lakey said during debate. “It doesn’t happen when they cross the state line. It happens when they take the furtherance and act in this capacity to facilitate and procure an abortion, and then get that minor to travel within the state to pursue that abortion.”
Idaho’s abortion ban applies to any stage of pregnancy, with affirmative defenses for cases of rape and incest with an accompanying police report and if an abortion is necessary to save a patient’s life. But Idaho is surrounded by several states where abortion is legal, including Washington, Oregon and Montana. Washington allows minors to obtain an abortion without parental permission, and Oregon requires parental consent for girls under the age of 14.
Planned Parenthood Great Northwest has stated it will challenge the legislation in court if it is signed by the governor. If it becomes law, Idaho will be the first state to ban interstate travel for abortion care.
Mistie DelliCarpini-Tolman, director of Planned Parenthood Alliance Advocates in Idaho, told States Newsroom the bill amounts to “medical surveillance” and said it’s unclear how the law will be enforced.
“That the state of Idaho or the Legislature thinks that is OK should be a huge red flag to anyone, no matter which side of the abortion issue you’re on,” DelliCarpini-Tolman said.
Lakey did not address the enforcement aspect of the bill, even after Sen. James Ruchti, D-Pocatello, commented on it during debate.
“I know this is a little facetious, but given the nature of this law, it sounds like you could post somebody at the border and check as you go across and say, ‘Well, I see you have a pregnant woman with you, what’s the purpose of your trip to Oregon?’” Ruchti said. “This goes way too far.”
Idaho AG: Physicians can’t refer people across state lines for abortion
Idaho Attorney General Raúl Labrador also issued a legal opinion this week stating abortion pills are included in the state’s abortion ban, and the medical professionals who supply them are subject to Idaho’s criminal penalties, including those who refer or prescribe abortion pills to pregnant patients across state lines.
The opinion also states abortion pills cannot be promoted under Idaho state law.
Rep. Brent Crane, R-Nampa, requested an analysis from Labrador’s office earlier this year, and the letter to Crane is dated March 27.
“The criminal abortion statute, to which the statutory definition of “abortion” applies, does not distinguish between an abortion carried out as a medical procedure and an abortion carried out by pills or chemicals,” Labrador’s opinion said. “The use of any means to carry out an abortion is prohibited.”
Crane wrote the letter on behalf of Stanton Healthcare, an anti-abortion clinic founded by Brandi Swindell. In a press release, Stanton officials said they were grateful to Crane and Labrador for the opinion.
“With this clarification of law from our attorney general, the state of Idaho has become one of the safest places for babies in the womb, and a place that provides a community of hope for women facing unexpected pregnancies,” said Linda Thomas, director of community outreach, in the release.
Labrador also cites two criminal statutes under Idaho law about promoting abortion pills, although both laws are from the 1970s and it’s unclear if they are still enforceable.
“The statute has several exceptions, but none of them apply to the promotion of abortion pills to the public,” the opinion said.
According to Labrador, medical providers located in Idaho cannot refer a woman across state lines for an abortion and cannot prescribe abortion pills to be picked up across state lines, saying it falls into the statute’s prohibition on assisting in the performance of an abortion.
Mack Smith, spokesperson for Planned Parenthood Great Northwest, told States Newsroom it is not illegal to refer someone out of state to access care in a state where abortion is legal.
“I cannot state clearly enough that it is legal to access legal care in other states. So if you’re accessing medication abortion in Ontario, Oregon, that is 100% legal, whether they like it or not,” Smith said. “The opinion indicates that health care providers can’t refer patients for necessary, lawful care in another state and that’s a view that has never been enforced in the 50 years, since Roe v. Wade or even before then, which is frankly ridiculous.”
She added that the Washington Legislature is still considering a shield law that would protect medical providers in the state from attempts at prosecution by other states like Idaho for providing legal abortion care.
“Before these bills were introduced and this opinion was shared, we were already in a place where we were having to reassure patients that what they were doing was not only safe but legal to do in Washington, and I think having something like the shield law would further assure patients that they are protected in the state of Washington,” Smith said.
States Newsroom national reproductive rights reporter Sofia Resnick contributed to this report.
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