Idaho attorney general’s take on abortion referrals lands at Ninth Circuit

SEATTLE (CN) — Idaho Attorney General Raúl Labrador argued to the Ninth Circuit on Wednesday that a federal judge incorrectly blocked him from prosecuting medical providers who refer their patients to legal abortion services outside the state.

The August 2023 preliminary injunction from U.S. District Judge B. Lynn Winmill stems from a letter Labrador wrote in response to Idaho Republican Representative Brent Crane on whether Idaho’s strict abortion ban prohibits doctors from referring women to legal out-of-state abortion services.

The hand-delivered letter — published by pro-life group Stanton International and used for fundraising efforts — explains that Idaho prohibits in-state doctors from referring abortion services or prescribing abortion pills for women to pick up across state lines. It also included a sweeping interpretation of the word “assist,” concluding that any doctor who refers their patients across state lines “has given support or aid to the woman in performing or attempting to perform an abortion and thus violated the statute.”

Idaho’s criminal abortion statute maintains that most abortions are a felony punishable by two to five years imprisonment. Any medical provider who assists in performing or attempting to perform a prohibited abortion will have their medical license suspended for a first offense and revoked after a second.

Labrador’s legal interpretation prompted Planned Parenthood Great Northwest and two Idaho doctors to sue the attorney general, all 44 state county prosecutors and members of the Idaho State Board of Medicine and Idaho State Board of Nursing. Labrador penned a new letter two days after the suit was filed, retracting the statements in his letter to Crane.

The Crane letter, the plaintiffs claim, established a threat of prosecution that violated their First Amendment protected speech and Winmill largely agreed.

When granting the preliminary injunction against Labrador, Winmill spared Idaho’s Board of Medicine and Board of Nursing because the plaintiffs could not prove that the boards could prosecute or enforce violations of Idaho’s criminal statute. Labrador’s appeal of the injunction made a similar argument.

According to Labrador’s opening brief from August 2023, Winmill’s order is pointless because it blocks a voided and unofficial legal interpretation that Labrador never intended for publication and “has not threatened, does not hold, did not defend, cannot prosecute and will not enforce.”

On Wednesday, however, the same arguments failed to sit well with a Ninth Circuit panel, especially since Labrador has never defended the constitutional merits of his interpretation.

“Is it the position of the attorney general that the Defense of Life Act would prohibit informing patients that they could go across state lines to get women’s health care?” asked U.S. Circuit Judge Kim McLane Wardlaw, a Bill Clinton appointee.

Idaho Solicitor General Alan Hurst, representing Labrador, said, “The Crane letter does not say that it would be a licensure issue to tell them they can go across state lines and the attorney general has never taken the position that that would be illegal under the statute. It says referral, which is a separate matter to my mind.”

U.S. Circuit Judge Eric D. Miller cut more to the point.

“It seems like, on your reading of state law, the injunction is just kind of a pointless waste of everyone’s time,” the Donald Trump appointee said. “But why are you so committed to opposing it?”

To this, Hurst noted that Labrador opposed the appeal on jurisdiction, not the merits. A good chunk of the answer, he said, is fees.

“I find it odd that this is the only reason you care is fees,” said Senior U.S. Circuit Judge William A. Fletcher, a Bill Clinton appointee. “That just doesn’t strike me as realistic as what’s going on here.”

Hurst eventually conceded that he is not aware if Labrador has backed away from the merits of his letter. But, to that point, Hurst argued that Labrador never presented a conflicting analysis on referrals, and that he withdrew the letter without advancing his theory.

“Like I’ve said before, it’s not his job,” Hurst said. “This is not his area to prosecute, and he doesn’t see it as his role to taking positions publicly on this issue and you see that in the Crane revocation letter.”

Planned Parenthood attorney Peter Neiman pushed back on Hurst’s latter point, arguing that the original letter was a signed, formal opinion under an official letterhead from the chief legal officer of the state.

“I think we would have a much tougher argument if it were a casual statement by the attorney general and I think we’d have a much tougher argument if were a statement from some other officer,” Neiman said.

Neiman also reminded the panel that when Labrador retracted the Crane letter, the plaintiffs’ counsel asked his attorney whether they could avoid litigation and continue referrals without fear of imprisonment.

“And he said, ‘No, you shouldn’t. You can't infer anything,’” Neiman said.

The panel did not indicate how they would rule.

Follow @alannamayhampdx

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