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News / Northwest

WA attorney general challenges Idaho’s abortion travel ban

By Elise Takahama, The Seattle Times
Published: August 1, 2023, 7:41am

Washington is joining several states in challenging Idaho’s recent abortion travel ban, arguing the new law is harmful and has already flooded Idaho’s neighbors with residents seeking care, according to a brief filed Monday.

It’s the third time Washington has weighed in on Idaho’s latest abortion laws. State Attorney General Bob Ferguson’s office has been working on ways to maintain and expand access to abortion care since last summer’s Dobbs v. Jackson Women’s Health Organization decision. The law, which went into effect in Idaho in May, makes it illegal to “recruit, harbor or transport” minors for abortions without parental consent — and calls this aid to minors “trafficking.”

Ferguson’s amicus, or friend-of-the-court, brief was filed in support of a lawsuit submitted in U.S. District Court in Idaho earlier this month by the Northwest Abortion Access Fund, Indigenous Idaho Alliance and an attorney working with sexual assault victims. The lawsuit argues the travel ban is unconstitutional and vague.

The ban infringes on the right to intrastate travel and First Amendment rights to talk about abortion with minors and engage in “expressive conduct,” the complaint argues.

“Washington vigorously supports those challenging Idaho’s patently cruel and unconstitutional law restricting travel for abortions,” Gov. Jay Inslee said in a Monday statement in support of the amicus brief. “This law places Idahoan youth in grave danger, and unlawfully infringes on every person’s First Amendment rights to free speech and to travel freely between states’ borders.”

He continued, “We will continue to harbor and comfort all Idahoans who seek health care services that are denied to them in Idaho.”

Idaho Gov. Brad Little said the law doesn’t prohibit interstate travel or block an adult from receiving an abortion, The Idaho Statesman reported after Little signed the bill. Instead, the ban seeks to “prevent unemancipated minor girls from being taken across state lines for an abortion without the knowledge and consent or her parent or guardian,” Little wrote to lawmakers in April.

But Ferguson’s amicus brief argues that Idaho’s law threatens and puts at risk Washington’s and other states’ medical providers and residents for helping Idaho residents.

Between January 2022 and early 2023, Washington’s clinics reported a 75% increase in Idaho patients, according to the brief. Oregon and Nevada saw similar trends.

Planned Parenthood is pointing Idaho residents in search of abortions to out-of-state providers, including in Washington and Oregon. This month, the organization bought several billboard and newspaper ads that promote abortionfinder.org, where patients can find their nearest provider.

The quickly rising number of patients in states that have protected abortion access threatens those providers’ ability to give timely medical care and increases patient risk, Ferguson’s brief argues.

The brief also raises concerns that the ban’s “vagueness” could scare health care providers in Washington and other states from offering any information about pregnancy or abortion-related transportation options to Idaho residents.

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“Idaho may of course enact public health laws within its borders,” according to the brief. “But basic principles of federalism and state sovereignty, as recognized in Dobbs, do not allow it to prevent its citizens from learning about or accessing legal health care outside Idaho’s borders — health care Idaho has no power to regulate.”

Ferguson’s office hopes the brief will help convince the Idaho judge to temporarily suspend the law through a temporary restraining order or a preliminary injunction.

Last month, Washington also filed an amicus brief that challenges Idaho’s attorney general’s belief that his state’s abortion bans prohibit providers from making out-of-state referrals for abortion care. Ferguson also targeted Idaho abortion laws last summer when he joined other states in supporting a U.S. Department of Justice lawsuit against Idaho, alleging its abortion ban violated federal emergency medical treatment laws.

Ferguson’s office has been active in other abortion-related legal battles in Washington and elsewhere in the country. In February, he filed a federal lawsuit, which is ongoing, against the U.S. Food and Drug Administration, accusing the agency of implementing “excessively burdensome” regulations on mifepristone, one of two common medication abortion drugs in the country.

His office also filed a separate amicus brief that month in a Texas federal court, defending the FDA’s original approval of mifepristone. In addition, Ferguson joined more than 20 other attorneys general earlier this year in urging pharmacies CVS and Walgreens to continue dispensing abortion pills.