Can states criminalize transporting a minor to another state for an abortion without parental consent?

Question

Idaho is a state that outlawed abortion.

A new bill (HB 98) has been introduced to modify their human trafficking laws, which mostly pertain to forced labor or sexual activities.

This bill makes it a felony to transport a minor without parental consent (not just notification) to another state that allows abortion, to get an abortion or abortion-inducing drugs. The felony punishment would be two-to-five years in prison. It allows the state Attorney General to prosecute if the local prosecutor won't. It also disallows court defenses like claims that an action brought under the section will violate a constitutional right of a third party.

Currently, parental consent laws vary between states allowing abortion. Every state allowing abortion requires some sort of parental consent or notification, some only require parental notification. However, four states don't require anything if the minor is 16 or 17 years old.

Don't all states outlaw taking minors across state lines without parental consent anyway? If so, wouldn't that make this bill redundant?

I can't think of any similar situation like to use marijuana or gambling, but those are already required to be an adult.

Do Interstate Commerce laws pertain to this bill?

I know there are Supreme Court rulings that all citizens have freedom of travel, however, this bill doesn't restrict movement, just an activity that happens in another state.

Overall, would this bill or parts of it be constitutional, or would it violate any constitutional rights?

Answer 1

Overall, would this bill or parts of it be constitutional, or would it violate any constitutional rights?

A statute of this kind, enacted by the state of Idaho, would probably be unconstitutional as a violation of the dormant commerce clause doctrine of the U.S. Constitution and the implied U.S. Constitutional right to travel.

Do Interstate Commerce laws pertain to this bill?

Yes.

The state of Idaho is purporting to regulate interstate commerce which is something that it is not generally permitted to do as a state government. Generally, interstate commerce must be regulated by the federal government (although not all state regulation that impacts interstate commerce is prohibited).

this bill doesn't restrict movement, just an activity that happens in another state.

Generally speaking, a state can't regulate something that happens in another state. See, e.g., lawsuits brought by Kansas, Nebraska, and Oklahoma in the U.S. Supreme Court, against Colorado, related to marijuana decriminalization in Colorado.

Don't all states outlaw taking minors across state lines without parental consent anyway?

No.

It isn't even clear that they have the right to do so.

Also, some states legally (and medical ethics in almost all states) treat women under the age of eighteen as effectively emancipated, at least for the limited purposes of reproductive healthcare.

While the federal government would probably have the authority to enact such a law under its authority to regulate interstate commerce, it would probably be unconstitutional for a state to do so.

Answer 2

It is not required to have parental consent to transport a minor from state to state. However, under 18 USC 2423(a)

A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life.

The new proposed provision expands the definition of "human trafficking" to include

(vi) Recruiting, harboring, or transporting a pregnant minor with the intent to deprive the pregnant minor's parent of knowledge of, and to procure, a criminal abortion, as described in section 18-622, Idaho Code.

Human trafficking is later deemed to be a crime, but also violation of that crime under subsection (vi) is punished by 2-5 years in prison rather than 25 years.

Note that §1 of the bill also gives a definition of "criminal abortion":

(4) "Criminal abortion" means a violation, an attempted violation, or a threatened violation of section 18-622, Idaho Code

The inclusion of threat extends the threat of criminal punishment in unconstitutionally vague ways, because for this subsection to be effective, it would have to expand "violation of section 18-622" by some magic. §18-622 simply says that

Every person who performs or attempts to perform an abortion as defined in this chapter commits the crime of criminal abortion.

A person who transports does not violate §18-622, therefore a person to threatens to transport also does not violate §18-622. It is nonsensical to speak of "procuring a crime", yet that is what the bill says. "Criminal abortion" is the (criminal) act of obtaining an abortion, and abortion is defined in §18-604 as

the use of any means to intentionally terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child except that, for the purposes of this chapter, abortion shall not mean the use of an intrauterine device or birth control pill to inhibit or prevent ovulations, fertilization or the implantation of a fertilized ovum within the uterus.

It is meaningful to speak of "procuring an abortion", but "criminal abortion" is given a special legal definition. The criminal act defined in §18-622 criminalizes performance of an abortion in a fashion contrary to law, where §18-622 also defines defenses to a criminal charge.

To be convicted, it would (theoretically) be necessary to prove two intents: deprive the parents of knowledge (text them before you go!) and procuring a criminal abortion. We may assume that if this wording stands, the courts will have to discover a legislative intent to say that "criminal abortion is deemed to be equivalent to abortion", despite the fact that the law does not actually say that.

One cannot appeal to the ordinary meaning of words to interpret this clause. In traveling to Washington for an abortion, one does not obtain a "criminal abortion", one obtains a legal abortion. A person being transported to Washington or Oregon for an abortion is not procuring an illegal / criminal abortion, they are procuring a legal abortion.

This is not to say that they couldn't fix the wording, though it's only the federal government that has the exclusive right to regulate interstate commerce. The US could then sue to block enforcement of this law.