“Encouragement, counseling, and emotional support are plainly protected speech under Supreme Court precedent,” a federal appeals court ruled on Dec. 2, “including when offered in the difficult context of deciding whether to have an abortion.”
In April of 2023, Idaho passed the nation’s first abortion “trafficking” law (travel ban) making it a crime to procure an abortion for a minor by “recruiting, harboring or transporting” them without parental consent.
In July, in a case titled Matsumoto v. Labrador, the law was challenged by attorney Lourdes Matsumoto, and two advocacy organizations: the Northwest Abortion Access Fund and the Indigenous Idaho Alliance. The parties (plaintiffs) all have “long histories of serving as trusted adults for minors who find themselves pregnant,” including providing them with “accurate and complete information about their lawful options” and the support needed to access lawful abortion care across state borders.
This law was enacted against the backdrop of Idaho’s draconian abortion regime, which the Guttmacher Institute ranks as one of the most restrictive in the nation. Under the state’s near-total ban on abortion, trusted adults became an essential resource for pregnant teens who could not turn to their parents for help in accessing legal abortion care. Filling a void, these adults could offer essential “advice regarding reproductive health options, including abortion, where those options [were] available and legal, and how and from whom to obtain transportation”—as set out in plaintiffs’ complaint.
But after the travel ban was enacted, it transformed these acts of care, support and guidance into criminal wrongdoings, punishable by up to five years imprisonment, which threatened to “isolate minors from those who might help them access abortion healthcare.” The plaintiffs further underscored the disparate impact of the ban on the state’s historically marginalized BIPOC and LGBTQ+ communities who “likely would have the have the hardest time traveling to neighboring states,” as well as on victims of intimate partner violence, especially those experiencing reproductive coercion, such as birth control sabotage.
Against the backdrop of the state’s abortion-hostile reality, the plaintiffs raised three primary federal constitutional claims (not all claims applied equally to each of the plaintiffs). Specifically, they argued that the law violated: (1) their rights under the due process clause; (2) the First Amendment; and (3) their protected right to travel “freely among and across state borders.”
Starting from the unassailable premise that the due process clause requires that individuals “have fair notice of which activities are lawful and which activities may put them within the crosshairs of law enforcement,” the plaintiffs argued the travel ban was so vague it forced them to “operate in a regulatory framework that is so standardless that it invites arbitrary enforcement and chills lawful conduct.”
Zeroing in on the recruiting and harboring provisions, they argued that the legislature had created a statute that makes unclear when lawful mentoring support stops, and unlawful conduct begins. A person of ordinary intelligence must discern what is helpful information regarding abortion for a pregnant minor and what constitutes recruiting; she must determine when an in-person meeting with that person becomes harboring.
She must then hope “that the line she draws in her own mind is the same line that law enforcement and prosecutors draw.”
This requisite line-drawing process under threat of criminal prosecution is not unlike what a doctor must do when a patient presents with an urgent medical condition in a state that only permits abortion when a condition is deemed life-threatening.
Zeroing in on the “primary objective of the law”—namely criminalizing “putting a pregnant person in your car and traveling up to the border”—the plaintiffs next argued that the law directly interferes with the fundamental right to travel both within and between states: As stated, Idaho may not “constitutionally ban the use of its roads and highways for the purpose of preventing people from exercising their constitutional rights, particularly when that travel is to exercise lawful rights in other states.”
Lastly, grounded in the foundational constitutional principle that “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,” plaintiffs argued that the travel ban criminalized protected speech—namely the provision of information regarding access to legal out-of-state abortions.
As a corollary, they further asserted that the travel ban interfered with their right to engage in “expressive conduct” (also known as symbolic speech), such as providing funding, which, while nonverbal, communicates a particular message.
Agreeing with the plaintiffs, in November of 2023, the federal district court issued a preliminary injunction preventing the law from going into effect. It powerfully stated a state may not:
craft a statute muzzling the speech and expressive activities of a particular viewpoint with which the state disagrees under the guise of parental rights … Nor can the state enact a criminal law that is so unconstitutionally vague that ordinary individuals … are without fair notice of what conduct is proscribed and that subjects individuals to arbitrary enforcement.
Early December’s Mixed Decision
On Dec. 2, the Ninth Circuit Court of Appeals issued a mixed decision in the case. It lifted the preliminary injunction with respect to the law’s harboring and transporting provisions, thereby allowing them to go into effect pending a trial on the merits.
However, it agreed with the lower court that the plaintiffs were likely to succeed at trial in establishing that the recruiting provision unconstitutionally interfered with their protected speech rights given its broad sweep, which, it noted, could potentially encompass the provision of legal advice to a pregnant minor about her lawful options. Accordingly, it continued the lower court’s preliminary injunction of this provision, thereby barring its enforcement.
Although not a complete win, as Wendy Heipt of Legal Voice, one of the attorneys for the plaintiffs put it: The “decision is a significant victory … as it frees Idahoans to talk with pregnant minors about abortion healthcare.” Underscoring its significance, the Ninth Circuit, in keeping with the plaintiffs’ position, made clear that “encouragement, counseling, and emotional support are plainly protected speech under Supreme Court precedent, including when offered in the difficult context of deciding whether to have an abortion.”
The decision’s significance extends further in two important ways.
- The court made clear that these modes of communication may not be “suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them,” such as that it is not appropriate for a minor to terminate a pregnancy without parental consent.
- It soundly rejected Idaho’s argument that plaintiffs’ speech and expressive conduct was “rendered unprotected because it is speech integral to criminal conduct,” noting that this would be the case if minors were being recruited for purposes of an illegal abortion. However, firmly repudiating the state’s view that obtaining a lawful cross-border abortion is somehow legally suspect, as many antis have argued, it made clear that a “State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State.”
As more and more states contemplate enacting travel bans, we need to lift them up for what they truly are—namely, bans on abortion support that aim to isolate young people off as they seek to navigate their lawful options.
