Helping a minor travel for an abortion? Some states have made it a crime. • Indiana Capital Chronicle

Helping a pregnant minor travel to get a legal abortion without parental consent is now a crime in at least two Republican-led states, prompting legal action by abortion-rights advocates and copycat legislation from conservative lawmakers in a handful of other states.

Last year, Idaho became the first state to outlaw “abortion trafficking,” which it defined as “recruiting, harboring or transporting” a pregnant minor to get an abortion or abortion medication without parental permission. In May, Tennessee enacted a similar law. And Republican lawmakers in Alabama, Mississippi and Oklahoma introduced abortion trafficking bills during their most recent legislative sessions, although those bills failed to advance before the sessions ended.

Those five states are among the 14 that enacted strict abortion bans following the U.S. Supreme Court’s June 2022 Dobbs decision, which dismantled the federal right to abortion. Now, conservative state lawmakers are pushing additional measures to try to restrict their residents from getting them in states where it remains legal.

“A lot of folks thought Dobbs was the floor and it’s really not,” said Tennessee state Rep. Aftyn Behn, a Nashville Democrat who’s challenging Tennessee’s trafficking law in court. “[Anti-abortion lawmakers] are coming for state travel and the ability to even talk about abortion.”

Abortion-rights advocates have filed lawsuits in Alabama, Idaho and Tennessee, arguing the laws are vague and violate constitutional rights to free speech and travel between states. A federal judge has temporarily blocked Idaho’s law from being enforced while the case is ongoing.

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Proponents of the laws argue they’re needed to protect parental rights and to prevent other adults from persuading adolescents to get abortions.

“This is a parental rights piece of legislation,” Idaho Republican state Rep. Barbara Ehardt told Stateline. “We can’t control someone getting an abortion in Oregon. But you cannot take a child to get an abortion without the parent’s knowledge because, at least in the past, we would have called that kidnapping.”

But critics warn that abortion trafficking laws could have grave implications not only for interstate travel, but also for personal speech and communication between friends, or between children and adults they trust.

“If courts go down this road, it could change the scope of the First Amendment,” Mary Ziegler, a legal historian and law professor at the University of California, Davis School of Law, told Stateline. “It could have an effect on what else qualifies as crime-facilitating speech, and that could limit the kinds of things people can say and do online and in other contexts.”

Opponents also question whether states should be permitted to interfere in the business of other states. Criminalizing travel within an abortion-ban state to reach another state for a legal abortion would “allow prosecutors to project power across state lines,” said Ziegler.

“We haven’t seen states try to interfere in what’s happening in other states in quite the same way in a long time,” she said. “That’s why there is legal uncertainty — because we’re not talking about something where we have a lot of legal precedent.”

‘Parental rights’

Tennessee state Rep. Jason Zachary, a Knoxville Republican, defended Tennessee’s legislation as “a parental rights bill” that “reinforces a parent’s right to do what’s best for their child,” in remarks he made to the Tennessee General Assembly before the bill passed. Republican Gov. Bill Lee signed it into law in May.

The following month, Behn joined with Nashville attorney and longtime abortion access activist Rachel Welty to file a lawsuit challenging the new law.

Behn and Welty sued nearly a dozen district attorneys in Tennessee, alleging they ignored Welty’s requests to define what behavior would be deemed illegal under the new law. The Tennessee law says that abortion trafficking occurs when an adult “intentionally recruits, harbors, or transports” a pregnant minor within the state to get an abortion or an abortion-inducing drug without parental consent, “regardless of where the abortion is to be procured.”

A hearing to determine whether the court will grant a temporary injunction blocking the Tennessee law, which is currently in effect, is scheduled for Aug. 30.

After Idaho passed its law in April 2023, two advocacy groups and an attorney who works with sexual assault victims sued the state attorney general. The plaintiffs claim Idaho’s law is vague and violates the First Amendment right to free speech, as well as the right to travel freely between states. The right to interstate travel isn’t spelled out in the U.S. Constitution but it’s implied, legal experts say. The Idaho law directly applies to travel within the state, but it also notes that defendants are not immune from liability if “the abortion provider or the abortion-inducing drug provider is located in another state.”

Megan Kovacs, a board member with the Northwest Abortion Access Fund, which is a plaintiff in the case along with the Indigenous Idaho Alliance, said it is “so clearly unconstitutional to disallow people from accessing health care from within or outside their state.” Kovacs added that her group also wants to protect its volunteers from legal liability.

Neither the Idaho nor the Tennessee law exempts minors who become pregnant after being raped by a parent.

“If that person had to go to a parent who didn’t believe them or wanted to defend that family member who was the abuser, that only impedes healing even more,” said Kovacs, who has spent a decade working with survivors of domestic and sexual violence.

Ehardt, who sponsored the Idaho bill, said any adult who is told by a child about an incident of incest should call authorities rather than helping the minor obtain an abortion without parental consent.

“You have to call the police and they will be the ones to help protect the child’s safety,” she said.

The 9th U.S. Circuit Court of Appeals held a hearing in May in Seattle, and Kovacs said she expects to learn in the next few weeks whether the court will uphold the temporary injunction blocking Idaho’s law while the lawsuit rolls on.

In July 2023, a group of health care providers sued Alabama Republican Attorney General Steve Marshall and district attorneys, asking the court to prevent the state from prosecuting people who help Alabamians travel to get abortion care in states where it’s legal.

The providers filed the lawsuit in response to remarks that Marshall made on a radio show in 2022, when he suggested that some people who aid a pregnant person in planning or traveling to get an abortion in another state could be prosecuted under the state’s criminal conspiracy laws. A judge denied Marshall’s motion to dismiss the lawsuit earlier this year, and the case is ongoing.

A coordinated effort

The Tennessee and Idaho laws mirror language in model legislation that was published in 2022 by the National Right to Life Committee, which bills itself as the nation’s oldest and largest grassroots pro-life organization.

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“With this model law, we [are] laying out a roadmap for the right-to-life movement so that, in a post-Roe society, we can protect many mothers and their children from the tragedy of abortion,” said Carol Tobias, president of National Right to Life Committee, in a June 2022 statement introducing the model anti-abortion law.

Anti-abortion-rights organizations, like other interest groups, have long coordinated strategies to promote their preferred legislation to state and federal lawmakers.

The Idaho and Tennessee laws focus specifically on minors, even though they comprise a small fraction of people who get abortions. Those under 19 accounted for 8.1% of abortions, and those under age 15 accounted for just 0.2% of abortions in 2021, the most recent year for which the federal Centers for Disease Control and Prevention has published data.

Kovacs and Ziegler say the bills zero in on minors’ access to abortion because policies that regulate children and teens tend to be more politically acceptable than broader restrictions that affect adults. Such bills also tend to be more likely to survive legal challenges in court.

A chilling effect

Nobody in Tennessee or Idaho has yet been prosecuted under the abortion trafficking laws, but an Idaho woman and her son were charged with kidnapping last fall for allegedly taking the son’s girlfriend, a minor, out of state to get an abortion.

One main goal of a law such as Tennessee’s, Behn believes, is to create a chilling effect so that average people are scared to help anyone who might need an abortion, for fear of breaking the law.

“These bills create an environment of suspicion, fear and misinformation,” said Behn. “But I do think we will see more aggressive district attorneys start to prosecute these cases. [The law] widens the permission structure to start prosecuting people.”

Laws criminalizing abortion travel and imposing other abortion restrictions may be designed to provoke a legal challenge, Ziegler said. With a 6-3 conservative majority, the U.S. Supreme Court might be inclined to support them.

Abortion-rights advocates argue that restrictive abortion laws end up harming even those people who live in states where abortion is still legal.

Oregon, for example, has some of the strongest abortion protection laws in the nation. And yet the strict abortion ban next door in Idaho has made it more difficult for Oregonians to access care, said Kovacs, who lives in Oregon.

Before Idaho’s ban, many people in Eastern Oregon traveled to Idaho for abortion care, she said, because its clinics were closer than Oregon’s clinics, most of which are concentrated on the western side of the state. Last year, in response to increasing abortion restrictions in other states, Oregon passed a sweeping health care omnibus bill that strengthens protections for abortion providers and explicitly allows minors to seek abortions without parental consent. It was signed into law and took effect in January.

Ziegler said it’s not hard to imagine that if abortion trafficking laws are upheld in abortion-ban states, at some point prosecutors in those states could file charges against providers in “safe” states for providing abortion help, such as mailing abortion pills.

“I think it’s not intended to just stop with the people who are in the ban states,” Ziegler said.