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Federal judge temporarily blocks any possible prosecution of Idaho doctors for providing out-of-state referrals for abortion

A sign hangs near the Idaho Capitol in Boise after protests against the state’s new abortion laws, which effectively banned the procedure.  (Sarah A. Miller/Idaho Statesman/TNS)

A federal judge has temporarily blocked any attempt to prosecute or strip medical licenses from Idaho doctors providing out-of-state referrals for abortion.

The ruling in favor of Planned Parenthood Great Northwest claims any such indictment would be “highly likely” to “unconstitutionally prohibit” the First Amendment-protected speech of Idaho medical providers. Appointed by Democratic President Bill Clinton, U.S. District Judge B. Lynn Winmill ruled such a policy “impermissibly regulates speech based on content and viewpoint.”

The authority for such prosecutions originates from a withdrawn legal opinion from Idaho Attorney General Raúl Labrador. The preliminary injunction prohibits enforcement of Labrador’s legal opinion pending a full trial.

Planned Parenthood Great Northwest claimed the ruling would protect 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,” reads the news release celebrating the temporary injunction.

Idaho Attorney General spokesperson Beth Cahill pointed to alleged bias of Winmill.

“In his 28-year career you’d be hard pressed to find a time when Judge Winmill has ruled against Planned Parenthood, so his decision is not surprising. Judge Winmill wants to restrain a power we don’t possess. We strongly disagree with his order,” reads the Attorney General’s statement.

Idaho implemented its ban on abortion at all stages of pregnancy last year following the Supreme Court’s landmark decision overturning Roe v. Wade. The only exceptions to Idaho’s ban include risk to the life of the pregnant person and pregnancies as a result of rape or incest that have been reported to law enforcement. An individual in Idaho who performs or attempts to perform an abortion outside of these exceptions face a felony and two to five years of imprisonment.

Earlier this year, Idaho State Representative Brent Crane, a Republican supporter of the state’s abortion ban, privately requested a legal opinion concerning the state’s new abortion law. Idaho abortion statute in part states the license of a health care professional will be revoked if the individual performs an abortion or “assists in performing or attempting to perform an abortion.”

Should this occur, the provider’s license is suspended for six months upon the first offense and permanently revoked upon the second. The Republican Attorney General’s response to Crane interprets this statute as prohibiting Idaho health care providers from providing out-of-state referrals for abortion-related care.

“The plain meaning of assist is to give support or aid. An Idaho health care professional who refers a woman across state lines to an abortion provider or who prescribes abortion pills for the woman across state lines has given support or aid to the woman in performing or attempting to perform an abortion and has thus violated the statute,” reads Labrador’s letter.

Though the March letter was initially private between the two politicians, a copy of it was posted on the website of Stanton International, a pro-life organization that used the letter’s contents in fundraising efforts.

Following this publication, Planned Parenthood Great Northwest and the American Civil Liberties Union of Idaho filed suit against Labrador to bar the attorney general, members of the Idaho State Board of Medicine and Board of Nursing, and prosecuting attorneys for every Idaho county from bringing criminal cases or licensing actions based on that interpretation of the law.

Within a month of the April lawsuit, Labrador released a second letter withdrawing the first. In that second letter, Labrador states because Crane’s request for a legal opinion was not one Labrador was “required to provide under Idaho law,” the legal analysis in it “is now void.”

The reasons stated for withdrawing the opinion were procedural in nature and not on the merits of the legal opinion itself. In his ruling, Winmill states the criminal abortion statute could still be interpreted in such a manner even if the letter itself had been withdrawn – rebuffing the attorney general’s attempt to dismiss the case.

“While the State tries to diminish the letter’s significance by framing it as akin to any attorney providing advice to any client, it cannot be ignored that this letter was issued and signed by Attorney General Labrador – Idaho’s chief legal officer – and was sent to a member of the Idaho Legislature,” reads the ruling.

“More importantly, this letter contained an expressed interpretation of Idaho’s criminal abortion statute, which is the only available written interpretation of the statute, public or not, by Attorney General Labrador. The State’s argument that the Crane Letter was not an ‘official’ statement does not negate the effect of the letter.”

Planned Parenthood Great Northwest CEO Rebecca Gibron claimed in a statement that Labrador is trying to hide his legal opinions from the public.

“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,” Gibron said.

The court case is part of a broader strategy of Planned Parenthood to encourage those seeking abortions in Idaho to receive them in states where they are legal.

Six pink billboards from the organization have been erected in the Boise area and will soon spout up across North Idaho.

“Extreme politicians in Idaho don’t want you to know this. Planned Parenthood does. Abortion is legal in Washington and Oregon,” the billboards reads.

According to Planned Parenthood spokesperson Mack Smith, the billboards are meant to educate Idaho residents on their rights to reproductive care.

“Following the many harmful, confusing and purposefully vague laws passed in Idaho, we were hearing from patients that they were confused about what their rights were and where they could legally access abortion care. Whether Attorney General Labrador likes it or not, it is our right to share this information with Idahoans: Abortion care is safe and legal in Washington,” she said.

In addition to the abortion ban, a measure criminalizing any adult who helps a minor receive an abortion in another state was signed by Idaho Governor Brad Little in April this year.

Those convicted of the new law could face two to five years of jail time. A separate lawsuit on this statute is ongoing.

Editor’s note: This story was changed on Aug. 2, 2023 correct the pronouns used by Planned Parenthood spokesperson Mack Smith.