Idaho Gov. Brad Little (R) signed a first-of-its-kind law Wednesday evening, which bans minors from traveling out of state for an abortion without parental consent.
Experts warned TPM back when the Supreme Court let Texas’ bounty-hunter law stand that these jurisdictional disputes would be the new front in the abortion war: red states seeking to police the procedure across their borders, and blue states trying to protect their providers from out-of-state prosecutions. With Idaho’s new law, that reality is taking shape.
Clash Of States
In Idaho’s neighboring Washington, for example, a “shield” bill is working its way through the state Senate that would protect people who travel to the state for abortion care from warrants, subpoenas or other court orders. Washington Gov. Jay Inslee (D) wrote Little a letter urging him to veto the travel ban bill, promising that Washington “will protect our providers, and we will harbor and comfort your residents who seek health care services that are denied to them in Idaho.”
Some, including the regional Planned Parenthood hub that plans to challenge the Idaho law, have hopefully pointed to Justice Brett Kavanaugh’s concurrence in Dobbs as proof that even this far-right Supreme Court won’t let such bans stand.
“As I see it, some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter,” he wrote. “For example, may a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”
The Idaho law tries to sidestep this issue by only criminalizing the part of the trip to another state that takes place within Idaho. This ban may prove the test case in whether the Supreme Court will accept that fairly flimsy workaround as a blueprint for other states to follow.
Harsh Penalties In A State Already Riddled With Them
A person convicted under the new Idaho law could be sentenced to two-to-five years in jail for helping a person under the age of 18 get an abortion or get abortion pills without permission from a parent or guardian. It also creates a pathway to sue doctors who perform abortions, even if they live out of state.
“Any female upon whom an abortion has been attempted or performed, the father of the preborn child, a grandparent of the preborn child, a sibling of the preborn child, or an aunt or uncle of the preborn child” can sue up to four years after the assistance occurs, per the law’s text.
While the bill prevents a rapist from bringing a civil action, that passage does not seem to extend to family members of the rapist.
As it is, Idaho has one of the most draconian abortion regimes in the country.
Abortion is only allowed in cases of rape and incest — and only as an affirmative defense in court, with an accompanying police report — and if it’s necessary to prevent a patient’s death.
Multiple Idaho hospitals have already announced that they’re shuttering their labor and delivery wards, citing staff shortages and difficulty in recruiting qualified physicians amid the state’s “political climate.”
‘Sole Discretion’ For The Idaho Attorney General
The Idaho lawmakers made sure to add a clause that would circumvent any local prosecutors resistant to enforcing the new law by giving the Idaho attorney general the “sole discretion” to step in and prosecute instead.
Attorney General Raúl Labrador (R) is already being sued by Planned Parenthood for issuing a legal decision finding that Idaho’s already-existing abortion ban prevents health care providers from even referring patients out of state for abortion care.
The QAnon Infection
Supporters of the legislation refer to it as the “abortion trafficking” law, an attempt to shift the criminality from a person who raped the minor to the person helping her get an abortion.
The roots in QAnon, which has a particular fixation on child sex trafficking and accusing prominent Democrats and celebrities of doing it, are evident in the terminology. It’s also seeped into other right-wing rhetoric, including “ballot trafficking,” an attempt by Big Lie proponents to assert that ballot collection is infused with insidious, illegal behavior.
Making Abortion Inaccessible Everywhere
Despite the Supreme Court’s mealy-mouthed insistence, anti-abortion activists will never be content to leave the decision to the states. They’ve always sought to ban abortion everywhere.
Idaho in particular, with its near-complete abortion ban, floats in a sea of states that either restrict the procedure much less, or proactively protect it. The Guttmacher Institute, which tracks state abortion policies, rates Washington and Oregon as “protective” and “most protective” of the procedure, respectively.
On Idaho’s other side, Montana and Wyoming have “some restrictions/protections,” but both allow abortions up until the point of fetal viability, at around 24-26 weeks.
