On April 6, Idaho Governor Brad Little (R) signed a bill into law creating the new crime of abortion trafficking, which makes it a felony punishable by two to five years in prison to assist a teen in obtaining an abortion without the consent of a parent or guardian. This first-of-its-kind law in the nation brings to fruition a long-standing goal of the anti-abortion movement; namely, preventing teens from cross-border access to abortion. In the wake of this post-Dobbs success, we are likely to see the intensification of campaigns to limit cross-border abortion access for teens and adults alike who live in restrictive states.
To better understand the critical significance of this “victory,” it is instructive to take a step back and consider the long history of failed attempts by anti-abortion lawmakers to impose limitations on the ability of teens to access cross-border abortion care.
Starting in the late 1990s and extending over a nearly 20-year period, ‘pro-life’ federal lawmakers prioritized the enactment of the Child Custody Protection Act (CCPA). According to Rep. Ileana Ros-Lehtinen (R-Fla.), CCPA’s lead sponsor in the House, the measure sought to ensure that “the rights of parents across the nation are not trampled by strangers who, without the knowledge of the parents,” take their daughters out of state for an abortion in circumvention of their home state’s parental involvement law.
By making transporting a teen across state lines a federal crime, proponents argued that teens would be protected from the “profound physical and psychological consequences of abortion … particularly when the patient is immature” and the “rights of parents to be involved in the medical decisions of their minor daughters” would be bolstered.
To further deter cross-border abortion access, anti-abortion lawmakers also sought to enact the Child Interstate Abortion Notification Act (CIANA), which made it a federal crime for an abortion provider to fail to give advance notice to parents of the abortion plans of an out-of-state teen. Again, lawmakers cloaked the stated purpose of this law in the entwined language of parental rights and youthful vulnerability proclaiming that it would protect “fundamental parental rights by giving parents a chance to help their young daughters through difficult circumstances as best they can.” Of course, there was no consideration of why these daughters, in contrast to the majority of teens, were unable to turn to their parents in the first place.
After nearly 10 years of failed attempts to deter cross-border abortion travel by teens, anti-abortion lawmakers in Congress largely gave up the fight. However, last week’s victory in Idaho makes clear that their long sought-after goal of restricting cross-border abortion access has been resurrected in the wake of the Supreme Court’s decision in Dobbs.
This time around, however, as exemplified by Missouri’s failed attempt to allow private individuals to sue anyone who assisted a state resident in obtaining an out-of-state abortion, efforts will not be limited to teens. As abortion-restrictive states seek to extend the reach of their laws beyond their borders while abortion-shield states push back against this encroachment, we can anticipate the escalation of legal battles over extraterritorial anti-abortion restrictions.
Set against this backdrop, it is unlikely that Idaho’s abortion trafficking law will be a one-off effort. Notably, however, it contains a rather unique qualifier when it comes to what constitutes the crime of trafficking, which was not included in the original bill, and it will be interesting to see if other states follow its lead.
In addition to making it a felony to provide a teen with medication abortion pills in the absence of parental consent, the law also criminalizes assisting a minor in obtaining an abortion by “recruiting, harboring, or transporting the pregnant minor within this state.” At first glance, the “within the state” language could create the impression that the trafficking law is not of real consequence, given that Idaho has one of the strictest anti-abortion laws in the country. In short, there are certainly not going to be a lot of folks at risk of prosecution for transporting teens to abortion appointments within Idaho.
However, this limitation is most likely best understood as a strategic end run around the uncertainty that surrounds the largely unchartered legal waters of state efforts to extend the reach of their criminal abortion laws across their borders. To avoid this potential quagmire, Idaho’s trafficking law simply criminalizes the in-state portion of the journey to an out-of-state abortion provider.
Plain and simple, the intended effect of the law is the same—namely, deterring teens from trying to leave the state in order to obtain an abortion where it remains legal, and to do so without the involvement of their parents.
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