Read more Stateline coverage about how states protect or restrict access to abortion.
Helping a pregnant minor travel for a legal abortion without parental consent is now a felony in at least two Republican-dominated states, prompting legal action by abortion rights advocates as well as similar legislation by conservative lawmakers in several other states.
Last year in Idaho became the first state to ban the “trade in abortion products” which defined as “recruiting, harboring, or transporting” a pregnant minor to obtain an abortion or abortion drugs without parental consent. In May Tennessee he passed similar law. And Republican lawmakers in Alabama, Mississippi AND Oklahoma During recent legislative sessions, they introduced bills concerning trade in abortion products, but the bills were not passed before the end of the session.
The five states are among 14 that have enacted strict abortion bans following a June 2022 U.S. Supreme Court ruling. Dobbs’ decisionthat eliminated federal abortion rights. Now, conservative state lawmakers are pushing for additional measures to try to restrict their residents from getting them in states where it’s still legal.
“A lot of people thought Dobbs was the voice, but he’s not,” said Tennessee state Rep. Aftyn Behn, a Nashville Democrat who is challenging Tennessee’s sex trafficking law in court.[Anti-abortion lawmakers] they come for state trips and the opportunity to talk even about abortion.”
Abortion rights advocates have filed lawsuits in Alabama, Idaho AND Tennesseearguing that the regulations are unclear and violate constitutional rights freedom of speech AND traveling between states.A federal judge has temporarily blocked enforcement of Idaho law during the pendency of the case.
Supporters of the law to argue They are needed to protect parental rights and prevent other adults from persuading teenagers to have abortions.
“This is a parental rights bill,” Idaho Republican Rep. Barbara Ehardt told Stateline. “We can’t police who performs an abortion in Oregon. But you can’t take a child for an abortion without the knowledge of the parent, because at least in the past, that would have been called kidnapping.”
But critics warn that regulations on the sale of abortion products could have stern consequences not only for interstate travel but also for personal conversations and communications between friends or between children and adults they trust.
“If the courts go down that 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 implications for what else qualifies as speech that facilitates a crime, 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 able to interfere in other states’ activities. Criminalizing travel within a state where abortion is banned to travel to another state for a legal abortion “would allow prosecutors to project power across state lines,” Ziegler said.
“We haven’t seen states try to interfere in other states in the same way in a long time,” she said. “So there’s 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 the Tennessee legislation as a “parental rights bill” that “reinforces a parent’s right to do what’s best for their child” in remarks he delivered to the Tennessee General Assembly before the bill passed. Republican Gov. Bill Lee signed it into law in May.
The following month, Behn and Rachel Welty, a Nashville attorney and longtime abortion access activist, filed a lawsuit challenging the up-to-date law.
Behn and Welty sued nearly a dozen Tennessee district attorneys, saying they ignored Welty’s requests to define what conduct would be considered illegal under the up-to-date law. Tennessee law says abortion trafficking occurs when an adult “intentionally recruits, harbors, or transports” a pregnant minor within the state for the purpose of obtaining an abortion or administering an abortion-inducing drug without parental consent, “regardless of where the abortion is to be performed.”
A hearing to decide whether to issue a fleeting injunction blocking Tennessee’s current law is scheduled for August 30.
After Idaho passed the bill in April 2023, two advocacy groups and a lawyer who works with sexual assault victims defendant attorney general of the state. The plaintiffs argue that the Idaho 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 travel between states is not enshrined in the U.S. Constitution, but it is impliedlegal experts say. 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 abortion-inducing drug provider is located in another state.”
Megan Kovacs, a board member of 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 prevent people from accessing health care within or outside their state.” Kovacs added that her group also wants to protect its volunteers from legal liability.
Neither Idaho nor Tennessee law exempts minors who become pregnant as a result of rape by a parent from compliance with the law.
“If that person had to go to a parent who didn’t believe them or wanted to defend the family member who was abusive, that would only make the healing process more difficult,” said Kovacs, who has worked with victims of domestic and sexual violence for a decade.
Ehardt, who sponsored the Idaho bill, said any adult to whom a child tells a story about an incest incident should call the police rather than lend a hand the minor have an abortion without parental consent.
“You need to call the police and they will help keep your child safe,” she said.
In May, the 9th U.S. Circuit Court of Appeals held a hearing in Seattle, and Kovacs said she expects to learn in the next few weeks whether the court will uphold her decision. interim injunction blocking Idaho’s law while the trial continues.
In July 2023, a group of healthcare providers defendant Republican Alabama Attorney General Steve Marshall and district attorneys asked the court to prevent the state from prosecuting people who lend a hand Alabamians travel to obtain abortions in states where they are legal.
The suppliers filed the lawsuit in response to comments Marshall made on a radio show in 2022, when suggested that some people who lend a hand a pregnant person plan or travel 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.
Coordinated effort
Tennessee and Idaho state laws reflect the language model legislation published in 2022 by the National Right to Life Committee, an organization that describes itself as the oldest and largest grassroots pro-life organization in the country.
“Thanks to this model law [are] “to develop a roadmap for the right to life movement so that in a post-Roe society we can protect many more mothers and their children from the tragedy of abortion,” said Carol Tobias, chairwoman of the National Right to Life Committee, in June 2022. statement introduction of a model anti-abortion law.
Anti-abortion rights organizations, like other interest groups, have long developed strategies to promote their preferred legislation among state and federal lawmakers.
This Idaho AND Tennessee laws specifically target minors, even though they make up a compact portion of people having abortions. People under 19 made up 8.1% of abortions, while people under 15 made up just 0.2% of abortions in 2021, the most recent year the federal Centers for Disease Control and Prevention published data.
Kovacs and Ziegler say the bills focus on minors’ access to abortion because rules that govern children and teens are typically more politically palatable than broader restrictions that apply to adults. Such bills are also more likely to survive legal challenges in court.
Chilling effect
No one in Tennessee or Idaho has yet been charged under the abortion-related laws, but an Idaho woman and her son were accused of kidnapping last fall for allegedly taking his son’s underage girlfriend abroad for an abortion.
Behn believes the primary goal of laws like Tennessee’s is to create a chilling effect, so that average people will be afraid to lend a hand people who may need an abortion for fear of breaking the law.
“These bills create an atmosphere of suspicion, fear and disinformation,” Behn said. “But I think we’ll see more aggressive district attorneys prosecuting these cases. [The law] expands the structure of powers to prosecute people.”
Ziegler said laws criminalizing travel for abortions and imposing other restrictions on abortions could be designed to provoke a legal challenge. 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 harm even those who live in states where abortion is still legal.
Oregon, for example, has some of the strongest abortion protections in the country. Yet neighboring Idaho’s strict abortion ban has made it harder for Oregonians to access care, said Kovacs, who lives in Oregon.
Before the Idaho ban, many people from Eastern Oregon traveled to Idaho for abortion care, she said, because the clinics there were closer than those in Oregon, most of which are concentrated in the western part of the state. Last year, in response to growing abortion restrictions in other states, Oregon passed comprehensive draft of the health care act which strengthens protections for abortion providers and explicitly allows minors to obtain abortions without parental consent. It was signed and went into effect in January.
Ziegler said it’s not challenging to imagine that if abortion-supply laws are enforced in states where abortion is illegal, prosecutors in those states could at some point bring charges against abortion providers in “safe” states that provide such services, such as mailing abortion pills.
“I think we’re not going to limit it to just people who live in states that have a ban,” Ziegler said.
