Idaho and Washington: abortion donnybrook

The Governor of Washington State started a donnybrook with the Governor of Idaho on the subject of abortion. At issue: Idaho passed a law making any adult who procures an abortion (or, say, mifepristone) for a minor without her parents’ consent, guilty of a felony and punishable by imprisonment for two to five years. This applies even if the abortion provider or abortion drug dispensary practices or does business in another State. Gov. Jay Inslee (D-Wash.) took exception to that, and actually asked Gov. Brad Little (R-Idaho) to veto the bill. With zero fanfare, Gov. Little signed the bill into law anyway. But now, more than two weeks later, he decided to answer Gov. Inslee’s letter. Both governors have behaved in an extraordinary manner, raising questions about the ambitions of both men for higher office.

What the Idaho abortion trafficking bill does

Idaho House Bill 242 adds a new Section to Title 18 of the Idaho Code – Section 623, on “Abortion Trafficking.” It reads in relevant part:

(1) An adult who, with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion, as described in section 18-604, Idaho Code, or obtains an abortion-inducing drug for the pregnant minor to use for an abortion by recruiting, harboring, or transporting the pregnant minor within this state commits the crime of abortion trafficking.

(2) It shall be an affirmative defense to a prosecution under subsection (1) of this section that a parent or guardian of the pregnant minor consented to trafficking of the minor.

(3) It shall not be an affirmative defense to a prosecution under subsection (1) of this section that the abortion provider or the abortion-inducing drug provider is located in another state.

The law mentions “transporting the pregnant minor within this State” because only Congress may forbid interstate transportation for any purpose. Notice that the consent of a parent or guardian makes this crime not a crime. But this law also applies to anyone who takes the minor to an abortionist in another State. So this obviously applies to any adult who, for example, takes an under-age girl into Washington State for an abortion.

The law in its final form passed the Idaho House on March 30, 58 to 11 with one absence. The Senate passed it, 27-7.

How Gov. Inslee reacted

On Tuesday the week after the bill passed, Inslee fired the first salvo, according to KREM-TV (Channel 2/CBS, Spokane, Washington).

In it he actually suggested that the new Idaho law violated the federal Constitution – though he gave no particulars.

Among the harmful impacts that this legislation will have, particularly when combined with Idaho’s recently passed abortion bans, are the exodus of some healthcare professionals from your state as well as the certain resulting increased mortality rate of Idahoan women and girls.

I question the constitutionality of this law and I know you are aware of the costly legal challenges that await should you choose to sign this bill, but, as the governor of a neighboring state, I am also deeply concerned about the impacts that EHB 242 will have on Washington residents traveling to and from Idaho. I fear that our residents, in particular the women and girls of Washington, will be in grave danger if they travel to your state and find themselves in need of urgent reproductive health care services. This bill would also attempt to punish some Washington residents who happen to be in your state for any length of time, a gross abuse of their right to travel between our states. As a result, all Washingtonians have a stake in this matter.

He also seemed to threaten Little personally, presumably with lawsuits in federal court. But again, he did not state the nature of any action he would take.

Little signs the bill anyway

At first, Gov. Little didn’t bother to answer the letter. The very day after he received it, he signed the bill anyway. The head of Planned Parenthood published this apoplectic statement:

Banning abortion wasn’t enough for these anti-abortion zealots. They will stop at nothing to control what we do and where we go — even if it means holding people hostage when trying to access essential health services. Young people seeking abortion deserve our compassion and support, not the extreme government overreach this law sanctions. Make no mistake: HB242 will have a chilling effect on those who would help minors access critical abortion care, putting young people in dangerous and isolating situations. We know these extreme attacks will continue and Planned Parenthood will never stop fighting for everyone’s ability to control their own lives, bodies, and futures.

In fact, Idaho law recognizes certain “medical emergency” conditions under which one can get an abortion in Idaho.

“Medical emergency” means a condition that, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.

The above makes phrases like “essential health services,” as Planned Parenthood used them, unclear. Less clear is what Planned Parenthood can mean by “critical abortion services” or “dangerous and isolating situations.”

Idaho answers Washington State directly

On Thursday April 20, the Idaho governor answered his Washington counterpart directly. KREM-TV had two segments about the controversy:

First, Gov. Little reminded Inslee that HB 242 prohibits precuring an abortion for a minor without the consent of said minor’s parent or guardian. He denied that the bill criminalizes interstate travel for reproductive health services. Then again, he never acknowledged abortion as a “reproductive health service.” Thus he refused to validate the euphemism.

Concerning the ban he signed into law, and its actual effect, he asked,

Why do you not support that? The national media’s and your efforts to exaggerate and misrepresent the bill only further complicate the process. It is a disservice to our citizens.

Then he threw this zinger:

It is hard to imagine why someone would leave Idaho for Washington when your state is home to sky high taxes, crime, and public encampments. Meanwhile, Idaho has turned back more tax relief per capita than any other state, we’re one of the safest states in nation, and we don’t back down to activists – we kick illegal public encampments off public property.

Zounds! This is a direct response to the Seattle CHAZ. What could Inslee say to that? After all, those who set up that Capitol Hill Autonomous Zone were his fellow travelers. And Inslee and Little both know it.

Unserious diatribes? Huh?

Little went on to say that Idaho had the “right and duty” to make laws on abortion, after Dobbs v. Jackson Women’s Health Organization made it a direct State matter. He went on to remind Inslee of the Tenth (“Reserved Powers”) Amendment.

At time of posting, Inslee had not responded directly to Little. KREM-TV did ask his office for comment, and got this reply:

Unserious diatribes will not deter Washington from defending the freedom and safety of anyone who comes here. That’s one reason why we’re consistently ranked one of the best states to live, work and do business.

True enough, US News and World Report rates Washington at the top. Scholaroo rates it as eleventh. But these rankings might rely on sheer inertia – the aerospace industry hasn’t yet moved out, for example. Furthermore, this is not the most useful metric of relative desirability of a State. For that answer, test the U-Haul Truck Finder. U-Haul quotes about the same rates either way between New Braunfels, Texas and Boise, Idaho. But it costs three times as much to rent a U-Haul to move from Seattle to New Braunfels as it costs to move the other way. Suddenly Washington State is looking less attractive by the only practical measure: how much will people pay to move in – or out.

In any event, Inslee is threatening to refuse extradition of any adult who “trafficks” an Idaho minor into Washington. Which puts him in the position of aiding and abetting kidnapping.

What does Greater Idaho have to say about this?

The Greater Idaho Movement has no comment. But notably, Rep. Barbara Ehardt (R-Idaho Falls), sponsor of HB 242, is one of that movement’s best friends in Idaho. She sponsored House Joint Memorial One, to encourage Gov. Little to invite all of Oregon east of the Cascades to join his State. The movement has only one position on abortion: they note that Oregon taxes its people to provide for it while Idaho does not.

Movement leaders have no present plans to invite any Washington counties to join. But Phase Two of their plan includes Columbia, Garfield, Asotin, Waitsburg and Uniontown Counties in Washington State.

Analysis

State governors do not normally discuss publicly one another’s laws or policies. That Jay Inslee should do so, could show that he’s afraid of losing people. He definitely has embraced “woke” politics, almost as bad as those of Govs. Gavin Newsom (D-Calif.) and Tina Kotek (D-Ore.).

Inslee also presides over a divided State. The Cascades divide the State almost exactly between the political left and right. Of Washington’s largest cities, Seattle, Olympia (the capital) and Vancouver are liberal, while Spokane and Yakima are conservative. In fact, except for Whitman County, all the Washington Counties that border Idaho voted Republican, not Democratic, in Midterms 2018. (And Maria Cantwell didn’t carry Whitman County by much!)

Idaho is not nearly as divided. Only four counties – Latah (on the Washington border), Ada, Blaine, and Teton – voted for Little’s Democratic opponent in 2018.

Inslee might try to refuse extradition of an adult charged under 18 I.C. Section 623. But he would create a sticky situation for himself if he did. Per Puerto Rico v. Branstad (1987), State governors must extradite on demand, if the extradition papers are in order. And even so, any adult violating that section would become persona non grata in Idaho, subject to arrest if he dared set foot in that State again.

And why, in this debate, has no one mentioned the spectacle of minor girls traveling long distances without chaperons?

Or is Inslee spoiling for a Supreme Court fight – or merely running a leftist dog-and-pony show? Stay tuned.