In June 2022, when the Supreme Court overturned Roe v. Wade, Justice Samuel Alito declared for the majority, "It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives."
But other members of that majority were quick to downplay concerns about the decision's impact on other constitutional rights directly concerning family and sexuality or even on other constitutional rights incidentally related to abortion access.
Justice Brett Kavanaugh, for example, in his separate concurring opinion, reflected:
As I see it, some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter. For example, 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.
In the nine-plus months since the court issued its decision in Dobbs v. Jackson Women's Health Organization, there's no question that the people, and not courts, now largely control abortion law.
On one hand, within six months of the Dobbs decision, 24 states had either banned abortion or were likely to do so. On the other hand, Kansas voters wholeheartedly rejected a constitutional amendment that would have, contrary to a Kansas Supreme Court ruling, expressly said the state constitution does not guarantee a right to abortion. And soon after, echoes of Kansas were felt in Michigan, Vermont and California, where voters "enshrined abortion rights" in each of those states' constitutions.
The rock bottom of Idaho's war against women is the law signed by Idaho Gov. Brad Little on Wednesday.
Idaho, however, is not like uber-liberal California or Vermont, nor has it yet faced the swift backlash against Dobbs felt in more moderate Kansas or Michigan. Instead, Idaho lawmakers not only have gone all in on banning abortion within state lines but also have doubled down to cut off women and girls' abortion access outside Idaho itself.
Specifically, Idaho law already "bans most abortions, with narrow exceptions to preserve the life of the mother or in cases of rape or incest," and, in shades of Texas's infamous abortion "bounty hunter" law, S.B. 8, "allows family members to sue abortion providers in civil court," according to The New York Times. Idaho's attorney general has also issued guidance to medical providers warning they could be subject to criminal penalties for referring patients to abortion providers outside the state.
Yet the rock bottom of Idaho's war against women is the law signed by Idaho Gov. Brad Little on Wednesday. Modeled on a provision of the National Right to Life Committee's "Post-Roe Model Abortion Law," this newest statute creates the crime of "abortion trafficking" and makes it a felony, punishable by between two and five years in prison, to help minors obtain either surgical or medication abortion without their parents' consent, including by traveling to states where abortion is legal. And lest any rogue state prosecutor refuses to enforce the law, the statute makes clear that the state's attorney general has authority to pick up the slack.
Little and his allies understand full well that their statute collides with existing constitutional law.
There's just one small problem. Even if one embraces Justice Kavanaugh's determination that the Constitution "neither outlaws abortion nor legalizes abortion," Supreme Court precedent reveals, as the Times noted shortly after Dobbs was handed down, "some form of a constitutional right to travel is almost uniformly accepted."
Of course, the bill's defenders have a retort at the ready. Technically, the statute does not touch out-of-state travel; it merely prohibits "recruiting, harboring, or transporting the pregnant minor within this state." They've also cleverly packaged the law, like another recent enactment forbidding and criminalizing the provision of gender-affirming care to transgender minors, within the framework of "parental rights."
Yet those two features — targeting only the in-state portion of abortion seekers' journey across Idaho's borders and limiting the statute's application to those who assist minors — aren't incidental. Just as opponents of LGBTQ rights have repeatedly deployed religious freedom as their constitutional Trojan horse, Little and his allies understand full well that their statute collides with existing constitutional law. Indeed, while disclaiming any impact on interstate travel, they have taken a page from the pre-Dobbs playbook: Pass laws in direct conflict with longstanding Supreme Court precedent in the hope of provoking the court to revisit it.
And that hope is precisely why Idaho Republicans have cloaked their efforts in the mantle of parental consent. Supreme Court precedent dating back to the 1920s protects the right of parents to make decisions about their kids' education and upbringing. And by placing two constitutional rights — the right to travel and the rights of parents to raise their children largely as they wish — at loggerheads, Little is hoping the Supreme Court will have no choice but to wade into the mud and, without saying much, if anything, about abortion itself, further erode reproductive freedom for women and girls.
That, according to Idaho state Rep. Lauren Necochea, would be a disaster not only for Idaho's girls, but for family unity and Idahoans' access to reproductive and pre-natal care generally. Necochea, a Democrat, left Idaho for college and graduate school, only to return after having the first of her children to raise them alongside her parents, siblings and extended family. In a fiery floor speech, she lamented:
I can’t encourage my two daughters to settle in Idaho with the laws we have on the books. I would be terrified to have my daughters try to carry a pregnancy here. This is not a safe place to be pregnant. I think this statute is tearing families apart, and is pushing out OGBYNs out of state. And this bill does nothing to change that.
Will Little and the anti-abortion movement succeed? For the sake of parents like Nechochea, who would rather their daughters have liberty and health than that they have control, I pray not.