SEATTLE — Over the past year, Washington and Oregon have witnessed a flood of patients seeking abortion care while neighboring Idaho has criminalized some abortion-related travel.
Termed “abortion trafficking,” the first-of-its-kind law makes it a felony to take a minor out of state to get an abortion without parental permission. The law’s critics say it will have significant consequences for some people, including Indigenous people in Idaho, and undermines tribal sovereignty.
“What happens in Idaho happens on Indigenous land and we cannot just ignore sovereignty and treaty rights, because the state has an anti-abortion stance,” said tai simpson, co-founder of the Indigenous Idaho Alliance, which has a lawsuit challenging the state’s new travel ban and restrictions on abortion-related education.
Emily Kleinworth, spokesperson for Idaho Attorney General Raúl Labrador, said by email that the office is always prepared to vigorously defend laws passed by the Legislature. Kleinworth declined to respond to specific claims raised in the lawsuit.
Since the U.S. Supreme Court overturned the constitutional right to an abortion last year, lawmakers in Idaho and Washington have been on different tracks. Idaho instituted some of the strictest abortion regulations in the country while Washington moved to fortify reproductive rights in the state and ensure that people traveling from out-of-state can access abortion without fear of prosecution when they return home.
The circumstances has led to an exodus of OB/GYNs from Idaho. Many hospitals and clinics have shuttered their labor and delivery units, impeding access to treatment for pregnancy, childbirth and menstrual disorders, among other needs.
In 2021, Idaho had three open abortion clinics, according to data from University of California, San Francisco’s Advancing New Standards in Reproductive Health database. By October 2022, the state had none. Washington and Oregon still had, respectively, 30 and 14 clinics offering abortion services.
The number of abortions performed monthly in Idaho has fallen from 190 in June 2022, when the Supreme Court issued its decision, to zero, according to data from the Society of Family Planning, a nonprofit supporting research on abortion and contraception. At the same time, the average monthly number of abortions recorded in Washington and Oregon increased by 166 and 147, respectively.
Even before the court’s Dobbs decision, , according to data from the state Department of Health. Spokane and Whitman counties on the Idaho border recorded some of the highest rates.
To prevent residents from circumventing Idaho’s near-total abortion ban by obtaining care in neighboring states, lawmakers in the Gem State introduced the “abortion-trafficking” bill in February. Ahead of its signing into law, state Attorney General Labrador in a legal opinion said Idaho would prosecute health care workers who refer patients to abortion providers in other states.
Idaho Gov. Brad Little has argued that the law does not criminalize interstate travel for reproductive care. Rather, he said, it prevents minors from traveling across state lines for an abortion without parental consent, adding that Idaho has “the right and duty” to make abortion laws.
Speaking on Wednesday, the Indigenous Idaho Alliance’s simpson said that, while the Idaho government’s actions on abortion will prevent all residents from accessing health care, the laws are particularly harmful to Indigenous people on remote reservations already struggling with poor health outcomes.
“At any point in time, somebody who needs care will not only have to travel anywhere between 2 to 5 hours to find it, they will have to travel out of state boundaries to access it,” said simpson, a Nimiipuu Nation and Black organizer and storyteller who styles her name lowercase.
“When the state says you can’t move, and you can’t talk about these things — that’s violating treaty rights that came long before the state of Idaho existed,” she added.
The Indigenous Idaho Alliance, along with Northwest Abortion Access Fund and Lourdes Matsumoto, an attorney working with sexual assault victims, were named as plaintiffs in a lawsuit filed Tuesday in U.S. District Court in Boise, Idaho. Legal Voice, a Seattle-based anti-discrimination nonprofit, is among the legal advocacy organizations representing them.
They contend the law is “unconstitutionally vague” and infringes both their constitutional rights to discuss abortion with minors and act in accordance with their beliefs, and to travel freely among states.
“It’s insane, and it’s very scary which is why this lawsuit so important, it is to make sure that Idaho isn’t making bad laws,” Matsumoto said.
Disadvantaged people bear the brunt of Idaho’s lack of maternal care.
Among all racial and ethnic groups, American Indian and Alaska Native infants in Idaho are nearly three times as likely to die before their first birthday compared to white infants, according to the March of Dimes.
Idaho’s general maternal mortality rates are also on the rise. Though data on inequities by race and ethnicity are lacking, several studies reveal deep inequities in health outcomes for pregnant Black, Hispanic and Indigenous people across the U.S.
The Indigenous Idaho Alliance alleges Idaho’s travel ban hinders their work to deliver health care “however that looks” for Idaho’s five federally recognized tribes and other Indigenous people on reservation lands stretching across the Pacific Northwest including parts of Canada.
Travel ban proponents contend it does not violate the constitutional right to interstate travel because it criminalizes only the portion of the trip within Idaho. Critics, however, contend it still breaches the rights of tribes, which are broadly protected against interference by state governments.
“State boundaries were put on top of our Indigenous homelands and the recognition of those boundaries is for settler colonization,” simpson said. “Our access should be unimpeded based on the treaty language many of our tribes operate and govern ourselves with.”
She likened the state’s abortion-trafficking law to the forced sterilizations of Indigenous people in the ‘60s and ‘70s, and described the anti-abortion push in Idaho as “state-sanctioned violence against Indigenous women.”
“This policy,” simpson said, “is merely a continuation of that genocide, that assimilation.”