Idaho’s New Law Will Punish Anyone Helping a Minor Access an Out-of-State Abortion With Up to 5 Years in Prison

Idaho Gov. Brad Little signed a first-of-its-kind law Wednesday night that criminalizes any adult who helps a minor undergo an abortion through a procedure or medication in another state without parental consent.

Under the law, adults would be facing felony charges and could be punished with two to five years in state prison for aiding with procuring an abortion, whether that be driving a minor across state lines, or helping them find an abortion provider out-of-state. Doctors who perform abortions would also be liable to criminal penalties. The law adds to the state’s near-total abortion ban, which prohibits abortions unless a pregnancy is the result of rape or incest (which has to be reported to law enforcement), or is a life-saving measure.

Proponents of the measure have heralded the law as a continuation of the state’s right to ban abortions. “With the U.S. Supreme Court’s reversal of Roe vs. Wade last summer, the right and duty to establish legal policy on abortion was finally returned to our state democratic process,” Gov. Little said in a letter to the Idaho legislature on Wednesday.

Opponents warn that this law adds on to the continuous attacks against the bodily autonomy of youth.

“If young people are unable to travel for care, they are forced to either self-manage an abortion and take on the potential legal risks, or carry an unwanted pregnancy to term along with the serious consequences that can have for their health and well-being,” says Megan Darby, Director of State Policy at the Guttmacher Institute, a research and policy organization. “Young people—along with everyone in Idaho and across the country—deserve compassionate and affordable access to the whole spectrum of sexual and reproductive health care.”

The law is set to go into effect in thirty days.

What does the new law do?

The new law, formerly known as House Bill 242, criminalizes so-called “abortion trafficking” by making it illegal to obtain abortion pills for minors or help them leave the state to obtain an abortion, with the intent of hiding the abortion from a minor’s parent or guardian.

Under the law, the father, grandparent, sibling, aunt, or uncle of the unborn child has a right to sue an adult who helps a minor obtain an abortion up to four years after the abortion. The law also allows the specified family members to file lawsuits against out-of-state doctors who perform these abortions.

The criminal ban does say that adults who help pregnant minors access abortions with the consent of parents/legal guardians have an affirmative defense. That means that if a defendant presents evidence that a minor’s parent or guardian agreed the child could travel out-of-state for an abortion, they do not have criminal liability.

The measure, however, says it is not an affirmative defense for an abortion provider or the provider of an abortion pill to be out of state. In other words, if a pregnant minor has a physician across state lines and obtains an abortion, that procedure is illegal.

Violators can face anywhere from two to five years in state prison.

How would the law be implemented?

The passage of the law does not mean it’s necessarily popular with Idahoans. In a poll commissioned by Planned Parenthood Votes Northwest and Hawaii but conducted by public opinion firm Lake Research Partners, nearly half of all Idaho voters reported being pro-choice, with 24% saying they think abortion should be generally available and only subject to “limited regulation.”

“There’s been a movement among progressive prosecutors to say that they’re not going to prosecute some abortion offenses,” says Cynthia Soohoo, Co-Director of the Human Rights and Gender Justice Clinic at CUNY School of Law. “But the law actually gives the Attorney General the power to enforce the law if local prosecutors don’t.”

In terms of implementation, experts tell TIME, prosecutors would have to have substantial evidence that someone crossed state lines to access care. Because Idaho is between Washington and Oregon, where legislators are already working to enact shield protection laws, there is likely to be a conflict of state laws.

Shield laws explicitly protect abortion providers from lawsuits if an out-of-state patient receives an abortion, but these laws also often protect “helpers.” The loose phrasing of the word helper applies to people who assist with the abortion, Elisabeth Smith, Director of State Policy and Advocacy at the Center for Reproductive Rights tells TIME that “assistance could be anything [from] driving someone to the clinic, to providing financial assistance, to helping them make the appointment.”

Shield laws also prohibit that state from “collaborating with any investigation that is about the provision of or assistance with reproductive health care,” according to Smith. “And so part of that prohibition on collaboration is a prohibition on subpoenas and providing evidence.” In other words, states like Idaho would be unable to access medical records or other evidence of abortion care if neighboring states do pass shield laws, making it difficult for a prosecutor to gather evidence.

With that in mind, it’s imperative that people who are seeking abortion care be private about their actions, Smith says. “Thinking about how each of us share information, what information we put on social media, and what messaging services we use to share information [is critical] because again, none of these prosecutions can go forward without enough information to prove that someone has helped a young person access abortion,” Smith tells TIME.

Idaho’s current abortion laws

Idaho’s abortion ban—which is modeled after a law in Texas—bars abortions after six weeks of pregnancy. The Idaho Supreme Court upheld the ban this January, despite legal challenges that said that the right to abortion was implied in Idaho’s constitution. Justice Robyn Brody, who presided over the case, said that abortion advocates’ argument had no backing.

Abortion continues to be a contentious issue in the state. Planned Parenthood and the American Civil Liberties Union announced on Wednesday that they are suing Idaho Attorney General Raúl Labrador after he issued a legal opinion that said state law prohibits medical practitioners from referring a patient across state lines to obtain abortion services.

His opinion said that even doctors who offer information about abortion providers and funds in other states would violate Idaho’s existing abortion ban.

“This is a five-alarm fire. Banning abortion wasn’t enough for anti-abortion extremists in Idaho; they now want to ban where you go, what information you’re legally allowed to obtain, and even what health care providers can say,” Rebecca Gibron, CEO of Planned Parenthood Great Northwest said. “Attorney General Labrador’s opinion is an egregious extension of Idaho’s abortion ban. We won’t stand for it.”

Similar to the rising number of anti-LGBTQ bills seen flooding state legislatures, Soohoo says it is very likely other conservative states will attempt to pass copycat laws, which would have similar provisions to Idaho’s law.

“There is actually a long history of writing laws initially to challenge Roe vs. Wade or to limit access to abortion by conservative think tanks [that] draft these laws and then share them amongst state legislature[s].” Soohoo tells TIME.

What’s next for Idaho?

Abortion access is likely to remain limited in the state after the Supreme Court overturned Roe v. Wade, which will have dire consequences on pregnant people in the state.

“In 50 years, when someone or multiple people, write the definitive history of all of the harms that flowed from the Dobb’s decision, there are countless harms that we are not yet aware of right now… in terms of maternal mortality and morbidity [in the state],” Smith says.

There have already been reports of at least one hospital discontinuing its labor and delivery services, which they say is partially because of Idaho’s political climate. And efforts to track the effects of the state’s anti-abortion laws remain up in the air as the state’s existing special committee that studies maternal deaths is set to end in July.

On the national front, experts say that Congress needs to act, though their most recent attempts have not been fruitful.

Last year, House Democrats attempted to pass the Ensuring Access to Abortion Act of 2022 that would protect health care providers who provide abortion services to out-of-state residents, people who help pregnant people travel across state lines for an abortion, and more. The bill passed in the House in July 2022, but did not move forward.

Senate Republicans also blocked the Freedom to Travel for Health Care Act of 2022, which would have protected people who travel state lines to receive an abortion and physicians who perform them.