The door to Attorney General Raul Labrador’s office at the Idaho State Capitol building on Jan. 6, 2023. (Otto Kitsinger for the Idaho Capital Sun)
A federal judge in Idaho could decide by Friday whether to issue a preliminary ruling barring state Attorney General Raúl Labrador from enforcing a legal opinion that stated physicians who refer patients for abortion care in other states could be prosecuted under Idaho abortion laws.
U.S. District Judge B. Lynn Winmill heard oral arguments Monday in a lawsuit filed by Planned Parenthood Great Northwest against Labrador earlier this month, along with two Idaho physicians, Drs. Caitlin Gustafson and Darin Weyhrich. The lawsuit alleged Labrador violated the First Amendment, due process laws and the commerce clause by issuing a legal opinion on March 27 that was requested by state Rep. Brent Crane, R-Nampa, on behalf of Idaho anti-abortion clinic Stanton Healthcare. In the letter, Labrador said abortion pills are included in the state’s abortion ban, and that medical professionals who supply them were subject to Idaho’s criminal penalties, including those who referred or prescribed abortion pills to pregnant patients across state lines. The opinion stated that the use of any means to carry out an abortion is prohibited.
The state’s abortion ban applies to any stage of pregnancy, with affirmative defenses for cases of rape and incest with an accompanying police report and if an abortion is necessary to save a patient’s life. Health care providers who violate the statute are subject to suspension or revocation of their medical license and between two and five years in prison. Attorneys who filed the complaint also named the Idaho State Board of Medicine, the Idaho State Board of Nursing and the state’s county prosecuting attorneys as defendants in the case, as those entities have enforcement power under Idaho’s abortion laws.
But Idaho is surrounded by several states where abortion is legal, including Washington, Oregon and Montana, and physicians have historically referred patients to clinics in those states for care they are unable to receive in Idaho, such as potentially fatal fetal anomalies and complications that place a pregnant person’s overall health at risk.
Planned Parenthood representatives said unless and until Winmill grants the injunction, Gustafson and Weyhrich won’t be referring patients for care across state lines.
Idaho’s largest health system says letter causes harm to patients, recruitment efforts
After Planned Parenthood filed the lawsuit on April 5, Labrador sent another letter to Crane that stated his March 27 opinion was procedurally improper because it was requested on behalf of a constituent, and therefore the content included was void.
In court filings and during Monday’s oral arguments, Deputy Attorney General Lincoln Wilson argued that rescinding the letter made the lawsuit irrelevant, but Planned Parenthood attorneys contend unless Labrador retracts the opinion itself and states it was incorrect information, physicians in Idaho cannot trust that a prosecutor wouldn’t use the original letter as the legal basis to bring charges under Idaho’s criminal abortion statutes.
Wendy Olson, an attorney for Boise-based law firm Stoel Rives, filed a brief in the case on behalf of St. Luke’s Health System, one of the state’s largest health care operations and the health system that delivers more babies than any other provider in Idaho. St. Luke’s also operates a clinic in Ontario, Oregon, where abortion is legal, which Olson said creates an issue for physicians within the health care system itself.
Olson argued that the initial opinion, regardless of whether it had been withdrawn, is confusing for physicians who were already unsure how to interpret Idaho’s abortion laws.
“For a physician trying to make a judgment call in a high-stakes situation for their patient, the complex legal landscape and patchwork of conflicting letters is not enough for them to rely on,” Olson wrote. “Idaho’s physicians and patients need a court order holding that this interpretation is contrary to law — nothing less will give them the clarity they need to make these critical decisions regarding patients’ health and safety.”
Olson added in the brief that it was already difficult to recruit and retain physicians in Idaho before the abortion ban took effect in August 2022, and said that prospect has become next to impossible in the months since. Maternal-fetal medicine specialists have already left the state in recent months, citing the abortion ban making it difficult for them to practice a high standard of care for patients, and the obstetrics and gynecology practice in Sandpoint, Idaho, announced it would close in May and cited the laws as part of the reason.
“Medical students and physicians need to be able to plan their lives and rely on legal certainties,” Olson wrote. “The ever-changing legal landscape simply creates too much risk for a physician to feel confident that they can practice medicine effectively and safely. Without that confidence, Idaho will continue to see highly trained physicians leave the state.”
Opinion wasn’t a mistake, just an abuse of the process, deputy attorney general says
Wilson argued that the letter never would have become public if it had not been published online by Stanton Healthcare, since Idaho law allows legislators to request legal opinions from the attorney general that remain under attorney-client privilege unless a legislator waives that privilege. He said doctors in Idaho don’t need to be concerned about an opinion that doesn’t threaten anyone with prosecution.
“We wouldn’t characterize issuing this opinion as a mistake, just an abuse of the opinion process,” Wilson said.
Winmill said despite that, it is difficult to “put the genie back in the bottle” even if the letter was withdrawn unless there is an acknowledgement that the initial interpretation of the law was wrong.
“It would seem at first blush to create a genuine fear among physicians that their past and future conduct of referring patients for care would create a well-founded fear that they may lose their licensure and face criminal prosecution,” Winmill said.
A ruling to grant the injunction would likely prevent Labrador and any county prosecuting attorneys as well as the state’s two licensing boards from bringing civil or criminal actions against physicians for referring patients across state lines, according to Planned Parenthood attorneys. They expect a ruling could come as soon as Friday evening or Monday.
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