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Washington, Oregon weigh in against Idaho law restricting out-of-state abortions

They joined nearly 20 other states this week in arguing against Idaho’s new law that makes it a crime to assist minors in seeking abortions outside the state
Boise is the capital of Idaho. | PINPALS/PIXABAY
August 2, 2023

Washington joined nearly 20 other states this week in arguing against Idaho’s new law that makes it a crime to assist minors in seeking abortions outside the state. 

Attorney General Bob Ferguson, along with attorneys general from 18 other states and the District of Columbia, filed a friend-of-the-court brief Monday in support of several advocacy groups and a civil rights attorney who are suing Idaho, alleging the law violates residents’ constitutional rights. 

“The Constitution protects the individual right to travel between states, and Idaho’s radical Legislature cannot abolish that right,” Ferguson said in a statement. 

Ferguson’s brief argues Idaho, with its law, is interfering with states that have less restrictive abortion policies, while also infringing on residents’ rights to interstate travel. 

“Idaho may regulate abortion within its borders,” according to the brief. “But Idaho cannot purport to criminalize the lawful provision of abortion care outside the state.”

It adds that “Idaho threatens to punish medical providers and residents” in Washington and the other states opposing the law “for giving information and assistance to minors who access lawful abortion care.”

The brief also highlights an influx of patients from Idaho to clinics in Washington and other states to receive abortion care, saying this  will contribute to delays and increased risks for patients. 

Abortions are almost completely banned in Idaho, with exceptions for rape and incest victims. A new law that passed earlier this year makes “abortion trafficking,” where an adult helps a minor seek an abortion out of state, a crime punishable by two to five years in prison. 

Sharp differences in state law

When Republican Gov. Brad Little signed the law, he and other legislators who supported the proposal disagreed that it hinders interstate travel. They instead framed it as a protection of parental rights, according to the Idaho Capital Sun.

Before Little signed the bill earlier this year, Washington Gov. Jay Inslee sent him a letter warning of the harmful effects that the legislation would have on Idahoan women and girls. 

“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,” Inslee said in a statement Tuesday.

Inslee signed a “shield law” earlier this year that protects patients who travel to Washington for an abortion or gender-affirming care from criminal investigations in other states. 

Under that law, Washington courts and law enforcement cannot issue or enforce subpoenas, aid criminal investigations or make arrests at the request of another state seeking information about cases related to treatment that is legal in Washington. It also bans summons of witnesses and extraditions requested by other states.

In the brief filed Monday, Ferguson argues the abortion trafficking law could have a chilling effect on minors and other people needing abortion care in Idaho who will no longer choose to travel for care because they are confused or afraid of the law.

In turn, that could result in worse health outcomes for patients who may need time-sensitive pregnancy and miscarriage treatment, according to the brief.

“While abortion is safe at virtually any stage — and, without question, far safer than carrying a pregnancy to term — delays in receiving abortion care make treatment more intensive, increasing both the risks for the patient and the financial costs,” the brief reads.

The implications of the Idaho law are “really dangerous,” said Lisa Humes-Schulz, vice president of policy and regulatory affairs at Planned Parenthood Votes Northwest and Hawaii. Its “lack of clarity” may lead to more people refusing to get abortion care because they fear being prosecuted.

Rise in out-of-state patients

Planned Parenthood clinics in Washington saw an uptick of 18% more patients in the first five months of the year compared to 2022, according to data from Washington’s Democratic U.S. Sen. Maria Cantwell’s Office. The total number of abortion patients from out of state has jumped up 36% this year, and the total number of patients from Idaho has jumped up 56%. 

The numbers vary by clinic, the Planned Parenthood Kennewick clinic saw 91 patients from Idaho in the first five months of this year. From January to May 2022, the clinic saw two patients from the state. 

Washington’s clinics have been “absolutely inundated” with patients, specifically from Idaho, Humes-Schulz said.

She said clinics have seen longer wait times, fewer appointment slots and limited resources to deal with the number of patients they’re seeing. 

This week’s court filing marks the third time Washington has submitted a friend-of-the-court brief related to Idaho’s abortion laws. A year ago, Ferguson joined other attorneys general in a brief supporting the U.S. Department of Justice challenging an Idaho law. 

Last month, Ferguson filed a brief, along with 14 other attorneys general, in a case brought by Planned Parenthood that challenges a law that providers say is hindering them from making out-of-state referrals for abortion care. 

In that case, a federal judge in Idaho on Monday ruled that Idaho Attorney General Raúl Labrador cannot take legal action against providers who refer patients across state lines for abortion care. Labrador has since filed a notice of appeal in the case. 

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