Bills to criminalize helping minors obtain an abortion, trans medical care move in Idaho

As a first-of-its-kind felony limit on helping minors to obtain an abortion advances in Idaho, its legislature passed a felony ban on gender-affirming care for minors.

The Idaho legislature is moving fast to create a first-of-its-kind abortion restriction, as it passes a ban on gender-affirming medical care.

Both bills target medical care for minors, and both would create new felony crimes for violations of the would-be laws.

First, H.B. 242 would create the offense of “abortion trafficking” that would create a felony criminal offense for anyone other than a parent or guardian who helps a minor in obtaining an abortion — including a medication abortion — if done so without the consent of a parent or guardian.

An “abortion trafficking” conviction would be a felony under the bill, with a minimum two-year prison sentence and a maximum of five years.

This is an alarming bill, and Alanna Vagianos drew national attention to it Tuesday with an in-depth story at HuffPost.

The bill represents a slightly more nuanced version (read, trying to address some of the most obvious constitutional concerns) of an abortion ban amendment considered — before the U.S. Supreme Court’s decision overturning Roe v. Wade — in the Missouri legislature last year that received significant reporting, including by me at the now-defunct Grid. That amendment, which was not passed into law, purported to bar people, even out of state, from providing abortions to Missouri residents or from helping Missouri residents to obtain abortions.

Just last year, the Idaho legislature itself considered a bill that some reporting stated would have restricted interstate travel for gender-affirming care for minors — although the legislative text passed by the Idaho House did not appear to do so and the bill ultimately did not pass the Idaho Senate. (I previously reported in that Grid article that pro-LGBTQ advocates at the time believed that was a drafting error and that a travel restriction was intended.)

Now, though, the issue is abortion, and the Idaho House is back.

H.B. 242 passed the state’s House on March 7, was amended in the Senate and has been filed for full consideration there. If it passes the Senate, the House will have to pass the amended Senate version. Both legislative chambers are controlled by a Republican supermajority and Republican Gov. Brad Little is extremely anti-abortion.

Here is the new crime that the House lawmakers would create:

This would represent an extreme and dangerous escalation of anti-abortion legislation.

It differs from the Missouri amendment because it doesn’t, directly, address out-of-state travel — an aspect that would raise substantial constitutional questions, as even Justice Brett Kavanaugh recognized in his concurrence in Dobbs v. Jackson Women’s Health Organization.

Instead, as Vagianos detailed in her report:

The legislation doesn’t actually say anything about crossing state lines, but Republican lawmakers are creative. Most pregnant people in Idaho are not traveling to obtain an abortion elsewhere in the state, since nearly all abortions are illegal in Idaho; they’re traveling to the border with the intent of crossing state lines, likely into Washington, Oregon or Montana, to get an abortion there.

“Technically, they’re not criminalizing people driving in Washington state with a minor. The crime is the time that someone is driving the minor in Idaho,” said David Cohen, a law professor at Philadelphia’s Drexel University whose work focuses on constitutional law and abortion policy.

Note that the crime itself would have several elements that a prosecutor would need to prove in order to secure a conviction, including:

• the adult “procure[d] an abortion … or obtain[ed] an abortion-inducing drug” for the minor

• with the “intent to conceal an abortion from the parents or guardian” of the minor

• by “recruiting, harboring, or transporting” the minor within Idaho.

Under the bill, the state attorney general could bring a direct prosecution if the local prosecutor won’t do so.

This aspect of the bill represents a continuation of the national effort by Republican officials to limit prosecutorial discretion — when they disagree with it. Such discretion from prosecutors went virtually unchallenged until recent years, when “progressive prosecutors” began being elected on platforms of using prosecutorial resources differently.

In addition to the travel element of the bill, it should be noted that H.B. 242 also amends the extensive civil lawsuits permitted under Idaho’s six-week abortion ban.

Among other changes, for those who are sued under the law, the amendments would remove certain arguments available to them as defenses against the lawsuit.

TRANS CARE: Also in Idaho, the legislature has passed a ban on gender-affirming medical care for minors, legislation that died in the Senate last year. H.B. 71 passed the Senate, with amendments, on Monday. The House concurred in the amendments Tuesday, meaning the bill will soon go to Little for final action.

The bill would ban gender-affirming medical care for minors, including hormones and puberty blockers, and make violations of the law a felony. Although there is no minimum sentence for a violation, it would allow for a medical professional convicted of violating the law to be sentenced to up to 10 years in prison.

Georgia, Iowa, Mississippi, South Dakota, Tennessee, and Utah have already passed slightly varying bans on gender-affirming medical care for minors into law this year. Alabama and Arkansas already had such bans, although both are limited from enforcement due to ongoing litigation. (Arkansas, however, has passed another law to try to get around the litigation, as previously covered at Law Dork.) Florida also has administrative bans on gender-affirming medical care for minors passed through its medical boards, although a lawsuit was filed against those bans last week. And, Arizona has a ban — that goes into effect on Friday — that bans surgery for minors, but not hormones or puberty blockers.

In Kentucky, Democratic Gov. Andy Beshear vetoed S.B. 150 — which contains a ban on gender-affirming medical care for minors, in addition to anti-trans and other anti-LGBTQ education provisions — but a legislative override is expected. There was a rally at the statehouse today opposing that expected override, which could come as early as today.

[Update, 5:30 p.m.: The Republican-dominated Kentucky legislature overrode Democratic Gov. Andy Beshear’s veto of H.B. 150, meaning the bill becomes law.]

In addition to the Kentucky and Idaho measures, more bans on gender-affirming care for minors have already passed state legislatures. Indiana’s S.B. 480 has passed the legislature and is going to Republican Gov. Eric Holcomb, and West Virginia’s H.B. 2007 is with Republican Gov. Jim Justice.

Finally, in Montana, S.B. 99 would ban gender-affirming care for minors and is scheduled to have its final vote in the Senate today. It previously passed the Senate before being amended in the House, which passed its amended bill on March 24 and sent the ban back to the Senate.

[Update, 5:30 p.m.: The Montana Senate gave final passage to S.B. 99 on a 32-17 vote, meaning it will go to Republican Gov. Greg Gianforte in short order.]

Other bills that would ban gender-affirming care for minors remain advancing in other states as well.