Sebastian's Point
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Pro-life Abortion Trafficking Laws Temporarily Put on Hold
In 2023 Idaho became the first state to enact an “Abortion Trafficking” law for minors in the post-Roe v. Wade era.[1] In 2024, Tennessee followed Idaho’s lead becoming the second state to enact such a law.[2] Generally, both laws make it illegal for an adult to transport a pregnant minor within the state for the purpose of obtaining an abortion with the intent to conceal the abortion from the parents or guardian of the minor.
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Both laws were met with swift court challenges and both are currently enjoined while the cases work through the appeals process.
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The Dobbs v. Jackson Supreme Court decision in the summer of 2022 overruled Roe v. Wade and returned the abortion issue to Congress and the state legislatures. After the destructive reign of the Roe decision ended, numerous states across the country swiftly moved to resurrect existing laws or pass new ones to protect unborn children.
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Twenty-four states have some protection for unborn children with 13 protecting unborn children at all stages of gestation (with exceptions for the life of the mother and some for rape and incest), 3 states protecting unborn children once the heartbeat is detectable, 2 at 12 weeks gestation and 1 at 15 weeks. At least 5 of these laws are currently enjoined, working through the appellate court process.[3]
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Tennessee and Idaho were among the states that elected to protect unborn children throughout gestation. However, very few of their neighboring states followed suit.
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While abortion data tends to lag several years, we are only now getting a first glimpse at any post-Roe abortion data. According to the Guttmacher Institute,
“New findings from the Monthly Abortion Provision Study show that an estimated 1,037,000 abortions occurred in the formal health care system in 2023, the first full calendar year after the US Supreme Court’s decision in Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade. This represents a rate of 15.9 abortions per 1,000 women of reproductive age, and is an 11% increase since 2020, the last year for which comprehensive estimates are available. It is also the highest number and rate measured in the United States in over a decade.”[4]
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While this data indicating an increase in abortion is met with caution by some,[5] the Guttmacher numbers do seem to reveal that women are actively traveling from protective pro-life states to abortion-friendly states to get abortions.
Justice Brett Kavanaugh, in a concurring opinion in the Dobbs case, directly addressed the issue of interstate travel: “May a state bar a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is ‘no’ based on the constitutional right to interstate travel.”[6]
Despite misleading headlines, no one, neither an adult nor a minor, is restricted from traveling out of Tennessee or Idaho for an abortion. What IS prohibited is an adult transporting her within state lines if the intent is to conceal it from her parents. The law also prevents an adult from assisting in procuring an illegal abortion within the state, for example, by obtaining and providing her with chemical abortion drugs within the state.
The Tennessee and Idaho’s laws seek to build on the long and legally permissible ability of states (even under Roe v. Wade) that seek to involve parents in the care of their children. Most parental involvement laws require that abortionists either notify, or obtain consent, or both notify and obtain consent, of a parent or guardian before a minor girl has an abortion.
In the earliest days of legal nationwide abortion, teens made up roughly a third of those seeking abortions. By contrast in 2021, females 19 and under represented only 8.2% of the abortions reported to the CDC.[7]
While parental involvement laws are effective in decreasing abortion, they tend to work less well where there are nearby states that permit abortion for any reason and for minors without consent. For example, Tennessee shares a border with Virginia and Illinois -- states with no meaningful abortion restrictions. Idaho shares a border with Washington, Oregon, Montana, and Nevada, also with no meaningful restrictions on abortion.
In an interesting meta-analysis from Health Affairs from 2023, the authors describe,
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In this first systematic review on the effect of [Parental Involvement] PI laws on minors seeking abortion services, we found consistent evidence that PI laws result in decreased rates of abortions to minors aged 17 and under…“Since the impact of PI laws is likely greater when there are no neighboring states to which to travel for out-of-state abortion services, the impact of PI laws has likely increased over time as additional states have enacted PI laws.[8]
Because the laws in Tennessee and Idaho are likely to have a positive impact on reducing abortions, naturally, they were immediately challenged in court by abortion advocates.
While both laws have been temporarily halted, the primary point of contention seems to be not over the full substance of the law (i.e. transporting, harboring a minor without her parents consent), but on the prohibition on “recruiting.” The Plaintiffs in both courts argue that the vague language could lead to overly broad applications, potentially penalizing individuals who merely inform minors about abortion services without actively assisting or transporting them.
These concerns have been at the crux of the challenges, with opponents asserting that the laws could infringe on free speech.
Reuters, in a May 7, 2024 article titled “Idaho seeks to revive 'abortion trafficking' law in US appeals court,” offered a look into the oral arguments at the appeals court before the 9th Circuit.
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Circuit Judges M. Margaret McKeown and John Owens, who were both appointed by Democratic presidents, appeared open to reviving at least part of the law. Circuit Judge Carlos Bea, an appointee of Republican then-President George W. Bush, did not speak during the argument. [McKeown] also asked both sides whether the part of the law against "recruiting" could be blocked, on the grounds that it interferes with speech simply telling minors about accessing abortions while upholding the prohibitions on harboring and transporting.[9]
Similarly, Judge Trauger in the Tennessee District Court issued an injunction writing,
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The vagueness of the recruitment provision is clear both on its face and from the litigation of this case. There are countless things that a person could intentionally say that might make a minor more inclined to seek an abortion, and the defendants have been markedly incapable of providing a clear picture of when such a statement rises to the level of recruitment. Such “indeterminacy” about “precisely what” standard a law imposes is what the prohibition on vague laws is intended to prevent. [internal citations omitted][10]
Neither the Tennessee nor the Idaho laws seek to punish women or ban travel. It is preventing a life-altering and potentially serious abortion procedure from being concealed from a minor girl’s parents.
As these important laws work the courts, one would hope that they are found to be constitutional, or at a minimum, that resolving the potential confusion over the term “recruiting” could be resolved and permit the rest of the law to stand.
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[1] I.C. § 18-623(1)
[2] Tenn. Code § 39-15-201
[3] https://sbaprolife.org/lifesavinglaws
[4] Despite Bans, Number of Abortions in the United States Increased in 2023, https://www.guttmacher.org/2024/03/despite-bans-number-abortions-united-states-increased-2023
[5] https://nrlc.org/nrlnewstoday/2024/03/guttmacher-says-abortions-increased-after-dobbs/
[6] Justice Kavanaugh. (2022). Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (concurring opinion).
[7] https://www.cdc.gov/mmwr/volumes/72/ss/ss7209a1.htm?s_cid=ss7209a1_w
[8] Kramer, Alisha, et al. "The impact of parental involvement laws on minors seeking abortion services: a systematic review." Health Affairs Scholar 1.4 (2023): qxad045.
[10] Welty et al. v. Dunaway et al., No. 3:2024-cv-00768 (M.D. Tenn. 2024). https://storage.courtlistener.com/recap/gov.uscourts.tnmd.99986/gov.uscourts.tnmd.99986.40.0.pdf
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