SEATTLE — Don't vacation in Idaho.
That's the advice a Washington-based legal advocacy group is telling some abortion providers because of a just-passed Idaho bill criminalizing "recruiting, harboring or transporting" minors for abortions without parental consent.
That's not because this first-of-its kind bill — which calls such aid to minors "trafficking" and now sits on Idaho Gov. Brad Little's desk — necessarily applies to Washington abortion providers or others who offer care and resources to minors crossing the Idaho border to end their pregnancies.
But the bill has opened a Pandora’s box of questions as more abortion patients come to Washington from Idaho, as well as other states with bans on terminating pregnancies. So Legal Voice, the advocacy group, considers it prudent for providers to stay away from Idaho if there’s any possibility of jeopardy under that state’s law, according to policy counsel Alizeh Bhojani.
"We can protect you within Washington state," she said. But in other states, "Washington doesn't have that same jurisdiction."
Vacation plans aside, some abortion providers say they plan to change few, if any, of their practices. For one thing, the bill, which carries a penalty of two to five years in prison, isn't yet law. And if Little makes it so, a legal challenge is certain.
"We plan to fight this with everything we've got," said Mack Smith, a spokesperson for the sprawling Seattle-based Planned Parenthood affiliate, which encompasses much of Idaho.
Opponents argue the bill violates a constitutional right to interstate travel, one acknowledged by U.S. Supreme Court Justice Brett Kavanaugh in his concurring opinion overturning Roe v. Wade last summer.
Idaho Rep. Barbara Ehardt, a Republican who sponsored the bill, counters that parental rights, rather than interstate travel, are at issue. "Let's be very clear: A parent absolutely has every right to take their child and cross the border and go to another state and get an abortion," she said.
A parent also has the right to cede authority to someone else to do so, she added.
But there's a catch, noted Sara Ainsworth, the Seattle-based senior legal and policy director for If/When/How, a national legal nonprofit that advocates for reproductive rights. The bill couches parental consent as an "affirmative defense" during prosecution, meaning that even someone with such consent could be arrested and charged.
"Say your niece lives in Coeur d'Alene [Idaho], and you live in Spokane, and you drive over to Coeur d'Alene to pick up your niece and bring her back to Washington for an abortion appointment," Ainsworth theorized. The parent may have said "yes, please," help my child, but the aunt might still be prosecuted and have to bring up the parent's permission in court.
As Ainsworth reads the bill, it applies only to conduct in Idaho. It would be the Idaho part of the trip to Washington that could get the Spokane aunt in trouble. In contrast, an Idaho teen's abortion provided in Washington wouldn't trigger the law, she said.
But Legal Voice's Bhojani said Idaho Attorney General Raul Labrador seems to be broadly interpreting what constitutes conduct in Idaho. "Idaho law permits a defendant to be charged with a crime where elements of the crime occur both in Idaho and another state," Labrador wrote in a March 13 legal opinion sent to an Idaho legislator.
An Idaho teen's phone or email appointment, booked by a Washington abortion provider, could be considered an element of the crime because of where the teen is located, Bhojani said.
She also said Washington groups that cover travel and other expenses for abortion patients coming to this state could run afoul of the Idaho law. The Northwest Abortion Access Fund and Planned Parenthood affiliates in eastern and western Washington all offer such financial aid to out-of-state patients.
Kate Cole, a volunteer with the access fund, said she couldn't speculate on whether the organization will curtail its funding to Idaho youth because the bill hasn't yet been signed into law. Spokespeople for the Washington-based Planned Parenthood affiliates said they need to review the bill before making a decision.
Still, Katie Rodihan of the Seattle-based affiliate said the nonprofit's guidepost is Washington, not Idaho, law. She noted the affiliate's call center, which schedules appointments for patients in Idaho and several other states, is in Washington. Its staffers will continue to schedule appointments for Idaho teens.
"What they're doing is 100% legal in the state of Washington," Rodihan said.
At the same time, advocates and Democratic lawmakers are trying to shore up Washington protections for abortion patients, providers and others who help people end their pregnancies by passing a "shield law." House Bill 1469 would block abortion-related warrants, subpoenas, extradition requests and court orders from getting traction in Washington.
So far, state House and Senate committees have passed the shield law bill, which now awaits a vote in the Senate's Ways and Means Committee.
