BOISE, Idaho — Prosecutors can enforce most of Idaho’s ban on helping minors obtain abortions in states where the procedure is legal without parental consent, an appeals court ruled Monday.

Known as the “abortion trafficking” statute, the 2023 law was the first of its kind in the nation and an effort by the Legislature to expand Idaho’s limits on abortion beyond state lines.

U.S. Magistrate Judge Debora K. Grasham prevented the law from being enforced after opponents sued the state in the summer of 2023. But after an appeal from the state, a three-judge panel on the 9th Circuit Court of Appeals on Monday reversed much of Grasham’s ruling.

The federal court allowed the state to enforce its law while litigation continues, with one exception: Prosecutors won’t be able to pursue a charge over “recruiting,” or attempting to influence a minor to get an abortion.

Both sides of the lawsuit called the ruling a success.

“This is a tremendous victory for Idaho and defending the rule of law as written by the people’s representatives,” Attorney General Raúl Labrador said in a Monday news release. “Trafficking a minor child for an abortion without parental consent puts both in grave danger, and we will not stop protecting life in Idaho.”

Part of Idaho law likely violates free speech, court wrote

Idaho’s law makes it illegal for any adult without parental consent to assist a minor to obtain an abortion by “recruiting, harboring, or transporting” the minor.

In July 2023, two abortion advocacy groups — Northwest Abortion Access Fund and Indigenous Idaho Alliance — sued the state, arguing that the prohibitions violated their constitutional rights.

The appeals court ruled Monday that the state’s bans on harboring or transporting minors seeking abortions is likely to hold up in court since the U.S. Supreme Court overturned the federal right to the procedure. The bans are punishable by two to five years in prison.

But the judges ruled that the ban on “recruiting” minors is likely a violation of free speech rights.

The court gave examples. An Idaho resident who lives near Oregon puts a bumper sticker on their car that says: “Legal abortions are OK, and they’re right next door. Ask me about it!” If a minor saw that sticker and approached the driver, who gave them money to get the abortion in Oregon, the driver could be prosecuted, the court found.

The judges also said distributing pamphlets about the state’s abortion laws, which is legal, could be viewed as an “attempt” to help a minor get an abortion if the person acted “in tandem” with another adult who helped the minor get the procedure.

In a third example, the court said an abetting charge could also be lodged against an advocacy organization that informed a minor about her health care options, gave her contact information for a partner organization in a state where abortion is legal, and "promised to keep the conversation a secret from the minor’s parents.”

“It sweeps in a large swath of expressive activities,” wrote Judge M. Margaret McKeown, who was appointed under former Democratic President Bill Clinton. “Encouragement, counseling, and emotional support are plainly protected speech under Supreme Court precedent, including when offered in the difficult context of deciding whether to have an abortion.”

The judges also noted one aspect of the “recruiting” portion of the law it found “worrying.” It applies not only to minors looking to obtain legal abortions outside of Idaho, but also to minors looking to obtain a legal abortion within Idaho, under one of the narrow exemptions allowed for rape, incest, or to save a mother’s life.

“An adult concerned for the well-being of an underage victim of incest would be prohibited from counseling and then assisting that victim in obtaining an abortion without informing a parent — who may well be the perpetrator,” McKeown wrote.

“This decision is a significant victory for the plaintiffs, as it frees Idahoans to talk with pregnant minors about abortion health care,” Legal Voice, an abortion rights group representing the plaintiffs, said in a news release Monday.

Abortion law is not ‘trafficking,’ judge wrote

The court took issue with Idaho’s use of the term “trafficking,” which generally refers to conduct that is “universally illegal” and has an “economic motive.”

“Calling the statute ‘abortion trafficking’ does not make it so,” McKeown wrote.

One of the judges, Carlos T. Bea, a George W. Bush appointee, dissented from the ruling, arguing that because the primary enforcement of the law is by county prosecutors and not the attorney general, the plaintiffs had “sued the wrong person.”

In her opinion, McKeown noted the array of laws prohibiting abortion that have been passed since the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. The decision overturned Roe v. Wade, a 50-year-old ruling that established a fundamental right to an abortion and instead gave states the authority to make laws about the procedures.

“Idaho has heeded this invitation with gusto,” McKeown wrote.

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