Federal Court Blocks Enforcement of Idaho Attorney General’s Prohibition on Out-of-State Abortion Referrals

Health care providers may resume offering critical information and assistance without fear of prosecution

Affiliate: ACLU of Idaho
August 1, 2023 11:00 am

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BOISE, Idaho — Yesterday, a federal district court judge granted an emergency request from Idaho health care providers to block the enforcement of a legal opinion, issued by Idaho Attorney General Raúl Labrador, that claimed Idaho’s abortion ban prohibits health care providers from referring patients for abortions out of state. The preliminary injunction protects health care providers so they can continue to offer comprehensive counseling and assistance to their patients without fear of being criminalized by the Attorney General for providing information about health care that is legal in other states. In states like Idaho with total abortion bans, referrals are a critical tool for providers to help patients access a full range of essential care, and a lifeline for patients who need abortion care.

The court ruled that the Attorney General’s interpretation of Idaho’s ban infringes on health care providers’ ability to provide appropriate care to their patients by violating their First Amendment right to refer their patients for abortion care. The inability to provide crucial medical information while the health care provider’s motion was pending put countless Idahoans at risk. Under the terms of the preliminary injunction, Idaho’s attorney general cannot sanction or prosecute health care providers for referring, counseling about, or otherwise offering information to patients who seek abortion outside of Idaho’s borders.

After issuing the March legal opinion declaring that providers who assist patients in accessing out-of-state abortion care can be punished under Idaho law, AG Labrador withdrew the opinion on procedural grounds after the lawsuit was filed. However, that withdrawal did not eliminate the “well-founded” fear the letter created among health care providers, as the court acknowledged. AG Labrador has refused to renounce the contents of the letter or say that he would not attempt to enforce the state’s total abortion ban against providers for referring patients for out-of-state abortions. The Attorney General’s threat, and his refusal to back away from it, left health care providers without any assurance that they could safely resume their constitutionally protected speech and conduct without exposing themselves to the risk of enforcement action. As the Court explained, medical providers “should not be required to speak first and take their chances with the consequences.”

An amicus brief filed in the case by St. Luke’s Health System, the state’s largest hospital system, powerfully outlined the harms to providers and patients created by the Attorney General’s opinion, saying:

“Because of the Attorney General’s interpretation of Idaho law, as expressed in his letter, physicians . . . risk legal liability and suspension of their medical licenses for simply having frank conversations with their patients. Physicians find themselves unable to provide the gold standard of medical care—or even discuss it—for risk of criminal penalties or license revocations. At best, patient care will be delayed for physicians to consult legal counsel. At worst, patient care will be denied entirely. As a result, patients will experience harmful and entirely avoidable consequences.”

Statement From Colleen Smith, participating attorney with the ACLU of Idaho:

“We are first and foremost grateful to receive this clarification on the law from the Court. Our clients can now confidently return to providing their patients with the out of state referrals they were providing before the Attorney General’s March 27 letter and that they need to provide to ensure their patients receive necessary care. The Court did the right thing by affirming the rights of healthcare providers and their patients to live and practice in an already challenging environment.”

Statement from Meagan Burrows, staff attorney with the ACLU Reproductive Freedom Project:

“This ruling sends a clear message to Idaho politicians and those across the country looking to draw inspiration from Attorney General Labrador that this brazen unconstitutional overreach will not stand. Providers shouldn’t face the threat of punishment for helping their patients obtain the abortion care they need in states where abortion is legal. We applaud the court for quickly moving to protect the rights of health care providers and the health of Idahoans by preventing the Attorney General and other enforcers in Idaho from taking action against health providers based on his deeply flawed and extreme legal opinion.”

Statement from Rebecca Gibron, CEO of Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky:

“While we’re glad to see this outcome, the truth is that we should never have gotten to this point. The legal opinion issued by Attorney General Labrador was the result of Rep. Crane partnering with an extremist anti-abortion group to try to game the system, and all parties are complicit in denying Idaho patients critical medical information since the letter was shared.

“Additionally, the hearings brought to light Labrador’s view that these radical opinions don’t need to be made public and can be shared in secret with no consequence. Idahoans deserve transparency into their Attorney General’s interpretation of the law, but AG Labrador continued to dodge questions and refuse to take responsibility for his words. In case there’s any doubt: Planned Parenthood will not quietly let rights get sloppily stripped one by one until there’s nothing left. We will fight for Idaho patients every step of the way.”

Statement from Alexis McGill Johnson, president and CEO, Planned Parenthood Federation of America:

“From the start, Attorney General Labrador’s opinion made it clear that anti-abortion politicians’ race to the bottom knows no bounds. We are relieved that the court saw the clear threat to Idahoans’ health and autonomy and blocked enforcement of this egregious legal opinion. Providers are already banned from providing abortion care in Idaho. To prevent them from serving as trusted resources for patients — further harming people in need of care — is a reckless encroachment on their rights. We know these extreme efforts to limit Idahoans’ freedom won’t stop here. Planned Parenthood will continue to fight until providers can provide care and information, and patients can get the help they need to access abortion.”

This lawsuit, Planned Parenthood Great Northwest, Hawai’i, Indiana, Kentucky v. Labrador, was filed by attorneys from Planned Parenthood Federation of America, the ACLU, the ACLU of Idaho, and the law firms Wilmer Cutler Pickering Hale and Dorr LLP, Bartlett & French LLP, and Stris & Maher LLP on behalf of PPGNHAIK, Dr. Caitlin Gustafson, and Dr. Darin L. Weyhrich. The complaint and brief in support of their request for immediate relief are available to view. Attorneys also filed declarations from PPGNHAIK CEO Rebecca Gibron, Dr. Gustafson, and Dr. Weyhrich.

Yesterday, a group of health care providers represented by the ACLU filed a lawsuit to prevent the Alabama Attorney General and district attorneys throughout the state from prosecuting those who assist Alabamians seeking to travel across state lines to access legal abortion care after the Attorney General threatened that health care providers could face felony charges for helping Alabamians to access abortion out of state.

A copy of the ruling can be found here.

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