Idaho bans abortion ‘trafficking’ for minors. What it means for WA residents, caregivers
A law recently passed in Idaho aims to curb Idahoans from searching for reproductive care out of state. This could spell trouble for Washington state health care providers.
The Gem State criminalized abortion in August 2022. Since then, many Idaho residents have been traveling to neighboring Washington state for reproductive health care. Some Washington clinics essentially straddle the state border, such as Pullman’s Planned Parenthood facility, which is eight miles west of the Washington-Idaho border.
In early April 2023, Idaho passed a statute that aims to further restrict abortion access. House Bill 242 makes it a felony for an adult to assist a minor in receiving abortion care out of state.
Although abortion is legal in Washington, Idaho’s law, in a way, is challenging the freedoms of the Evergreen State. In March, Idaho’s attorney general, Raúl Labrador, indicated on several occasions he intends to prosecute anyone who disregards Idaho’s recent abortion statute.
“The Idaho attorney general has been pretty explicit that if any element of this [abortion services] happens in Idaho, he is willing to pursue criminal charges, regardless of where that person is situated,” says Alizeh Bhojani, Washington state policy counsel for nonprofit equal rights organization Legal Voice in an interview with The News Tribune.
We spoke with Bhojani and other legal counsel with the American Civil Liberties Union of Washington to get the details on how Idaho’s abortion trafficking law impacts Washingtonians.
What Idaho’s law and attorney general say
Idaho Governor Brad Little approved the abortion trafficking legislation on April 5. Here are some specifics:
The law prohibits adults from assisting pregnant minors from getting abortion-inducing drugs without parental consent. It does not prohibit adults from seeking the same medical care out of state.
The legislation states “recruiting, harboring, or transporting the pregnant minor within this state commits the crime of abortion trafficking.”
- If an adult assists a minor in any of these ways, they can face two to five years of time in state prison.
The bill also notes that Labrador, as Idaho’s attorney general, has the authority to prosecute Idahoans who violate this law. This is what the attorney general says:
- On May 27, Labrador stated in a legal opinion that the new Idaho law prevents health care providers from referring patients to seek out-of-state care.
- Labrador adds that health care workers who offer information about another state’s abortion providers and abortion funds is also a violation of Idaho’s abortion ban.
- Providers who go against the state’s ban risk losing their medical licenses and criminal prosecution, according to Labrador’s letter.
Two Idaho physicians, as well as Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, filed a lawsuit on April 5 to prevent the attorney general from prohibiting out-of-state referrals. Planned Parenthood stated in its news release that Labrador’s interpretation of the law transcends the boundaries of Idaho’s law and is an extreme attempt to prohibit health care providers from accessing necessary health care.
Following the pushback, Labrador withdrew his statement on April 7 in which he said he would prosecute those giving out-of-state referrals, according to documents obtained by CNN.
Planned Parenthood of Greater Washington and North Idaho did not immediately respond to The News Tribune’s request for comment on how the law will impact health providers at its Washington facilities.
Labrador’s intentions to prosecute providers for giving out-of-state referrals on abortions to Idaho residents is unconstitutional, says Leah Rutman, health care and liberty policy counsel for the American Civil Liberties Union of Washington. Rutman says the attorney general’s actions would violate the first amendment and the Due Process Clause, which states that states cannot “deprive any person of life, liberty, or property, without due process of law.”
Criminal process in WA
Idaho’s law specifically notes “recruiting” a minor is prohibited under its abortion ban statute. This could be a problem for Washington caregivers, says Bhojani, the legal counsel specialist with Legal Voice.
Bhojani explains that the bill’s loose and undefined language can be interpreted in several ways. For instance, she noted that if a Washington health provider communicates with someone in Idaho seeking medical care in Washington, then that can be interpreted as “recruiting” for the purposes of giving an abortion.
Bhojani describes the criminal process that would play out if Idaho’s attorney general seeks to press charges against people in Washington allegedly complicit in an abortion trafficking crime.
- Idaho would share a warrant for a person’s arrest with Washington state police in the hopes of extraditing the person to Idaho.
- Extradition would require approval from Washington Governor Jay Inslee, who has made his stance supporting abortion clear over the past year. In a letter dated April 4, Inslee urged Gov. Little to veto the abortion trafficking statute. On the same day, Inslee announced Washington had purchased a three-year supply of of the abortion medication mifepristone.
Protections in the WA Legislature
There are three bills currently in the Washington Legislature that aim to protect Washington state health care providers.
- HB 1469: Washington’s first safeguard is a shield law that would protect health care providers regarding gender-affirming and reproductive care. If another state issues a criminal warrant or subpoena for a Washington caregiver regarding gender-affirming or reproductive care, then the shield law effectively blocks those criminal charges as long as the health care provider is physically in Washington. The bill was approved by the Senate on Monday and now awaits Gov. Inslee’s signature.
- HB 1340: The second bill protects medical providers’ licenses. If signed into law, the statute would allow Idaho health care providers – specifically those who have had their licenses revoked due to providing abortions in Idaho – to provide medical care in Washington as long as they practice within the Evergreen State’s standard of care. As of April 6, the bill has passed both the House and Senate.
- HB 1155: The third and final protection regards data privacy. Bhojani says the bill would protect Washignton’s citizens’ location and health care information that otherwise isn’t preserved under the Health Insurance Portability and Accountability Act (HIPAA). “A lot of folks use period trackers, other apps that can have a lot of sensitive information that is often sold to third parties without a consumer’s knowledge or consent,” Bhojani says. She adds that the bill would require consumers give their consent to such data being sold or shared to outside entities. It was approved by both the House and Senate as of April 5.
This story was originally published April 11, 2023 at 10:55 AM with the headline "Idaho bans abortion ‘trafficking’ for minors. What it means for WA residents, caregivers."
