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In Idaho’s latest bid to out-draconian all other states’ anti-abortion laws, the Idaho House is on track to pass the nation’s very first ban on pregnant minors traveling to other states to get an abortion. The bill, Idaho HB 242, would create a brand new crime called “abortion trafficking,” defined thusly:
An adult who, with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion […] or obtains an abortion-inducing drug for the pregnant minor to use for an abortion by recruiting, harboring, or transporting the pregnant minor within this state commits the crime of abortion trafficking.
The brilliantly sneaky thing about the law is that it doesn’t explicitly ban minors from leaving the state to get an abortion, which could end up in sticky multi-jurisdictional litigation. But because virtually all abortions in Idaho are already illegal, the law doesn’t actually require someone to cross state lines with a pregnant minor to get an abortion. Rather, it’s enough to be “transporting” the minor in the direction of Oregon or Washington, or to an Idaho airport, with the intent of getting an abortion.
The law also prohibits any adult who’s not a parent or guardian from obtaining abortion medications for a minor. Yes, it would very much penalize other nonparental family members, like an older sibling or a single aunt who listens to Indigo Girls on her Subaru Forrester’s audio system.
The new offense would be a felony, and guilty parties could be imprisoned for two to five years. And just to make sure no wild-eyed feminist DA’s in the state’s Marxist university towns get any bright ideas about not prosecuting an accused abortion trafficker, the law would let the state attorney general intervene to overrule local prosecutors who decline prosecution.
Even if a parent or guardian gave permission for another adult to help a teen get a legal abortion, the designated trafficker would still have to be prosecuted, but they would be allowed the “affirmative defense” of showing they had the parent’s permission. It’s similar to Idaho’s “life of the mother” exception for abortion. All abortions are illegal, but doctors and nurses can present as a defense their evidence that the pregnant patient was in imminent danger of death, and hope the judge agrees.
David Cohen, a law prof at Drexel University in Philadelphia, told HuffPost that the Idaho lawmakers who drafted the Fugitive Uterus Act were, if not exactly clever, at least possessed of a certain low cunning.
“Technically, they’re not criminalizing people driving in Washington state with a minor. The crime is the time that someone is driving the minor in Idaho. […]
“They’re going to say what they’re doing is just criminalizing actions that take place completely within Idaho, but in practice what they’re criminalizing is the person helping the minor.”
The bill’s sponsor, state Rep. Barbara Ehart, happily acknowledged to HuffPost that the bill was aimed at preventing Idaho minors from seeking abortion care outside the state, explaining that
“It’s already illegal to get an abortion here in the state of Idaho. […] So, it would be taking that child across the border, and if that happens without the permission of the parent, that’s where we’ll be able to hold accountable those that would subvert a parent’s right.”
Ehart also insisted that she wouldn’t dream of interfering with parental rights, at least not until that seems likely to survive a court challenge:
“A parent absolutely still has the right to take their child across the border and get an abortion,” Ehardt added. “The parent still has the right to cede that power and authority to someone else, such as a grandparent or an aunt, to take that child, should they be pregnant, across the border and get an abortion.”
We’ll just assume she then faked a coughing fit and muttered “For now.”
State Senate Minority Leader Melissa Wintrow (D), who represents Yr Dok Zoom’s Boise district, told HuffPost that HB 242 is only one part of an overall Republican strategy of incrementally piling on any abortion restrictions they think they can get past the courts.
“The far right has an incremental plan. It’s death by a thousand cuts on many things, but they’re especially unrelenting on abortion. […] My colleagues are just rabid about denying all access to abortion care. It’s really harmful to women, and it’s harmful to our state.”
HuffPost also points out that the Idaho bill was copied “nearly word for word from a model law published by the National Right to Life Committee,” and then written up for Ehart by the Idaho affiliate of the national group.
And of course, for all the talk of “parental rights” and making sure pregnant teens aren’t spirited out of the state by an evil adult ‘bortion trafficker, HuffPost points out that
Studies show that requiring parental involvement can increase the risk of harm or abuse, delay care and lead minors to seek out dangerous alternatives. The risk of abuse is especially acute for LGBTQ kids.
Still, that shouldn’t be a problem, since Idaho’s already working to make LGBTQ+ teens illegal as well, the end.
[Idaho HB 242 / HuffPo / Lawdork]
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