Idaho AG can’t prosecute providers for abortion referrals, federal judge orders in injunction

Opinion says Labrador’s legal advice chilled physicians’ speech, and parties now have 14 days to submit next-step plans to court

By: - August 1, 2023 6:32 pm

A federal judge in Idaho has granted a preliminary injunction barring Idaho Attorney General Raúl Labrador from taking legal action against medical providers who refer patients across state lines for abortion care and denied Labrador’s request to dismiss the case. (Getty Images)

A federal judge in Idaho has granted a preliminary injunction barring Idaho Attorney General Raúl Labrador from taking legal action against medical providers who refer patients across state lines for abortion care and denied Labrador’s request to dismiss the case.

U.S. District Judge B. Lynn Winmill issued a 60-page opinion detailing his reasoning for the order on Monday evening. Winmill said the medical providers who sued Labrador established there was a genuine threat of prosecution that resulted in the chilling of their speech, which he called “a well-established concrete injury.” While the case proceeds, no charges can be brought by Labrador’s office against Idaho medical providers for referring patients for abortion care in other states.

In the same order, Winmill said the parties have 14 days to submit litigation and discovery plans as the next step in the lawsuit. Labrador filed on Tuesday in U.S. District Court a notice to appeal the decision.

“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,” said Beth Cahill, communications director for Labrador’s office, in an emailed statement to States Newsroom. “Judge Winmill wants to restrain a power we don’t possess. We strongly disagree with his order.”

The opinion comes three months after oral arguments were heard at the end of April in the lawsuit filed by Planned Parenthood Great Northwest and 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 March letter, Labrador said abortion pills are included in the state’s abortion ban, which applies to any stage of pregnancy, and said medical professionals who supply them were subject to Idaho’s criminal penalties. The letter said it included those who referred or prescribed abortion pills to pregnant patients across state lines, and the use of any means to carry out an abortion is prohibited.

“While we’re glad to see this outcome, the truth is that we should never have gotten to this point,” said Rebecca Gibron, CEO of Planned Parenthood Great Northwest. “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.”

Gibron said in a written statement that she is unsurprised that Labrador will appeal Winmill’s decision in the preliminary injunction.

“He will try to claim that the cards were stacked against him and that the judge was unfavorable in this trial, but the truth is that the cards are stacked against the patients of Idaho right now,” she said. “For too long, extremists in this state have been creating harmful laws with no checks and at the first sign of accountability for that, they are crying foul.”

Order only applies to AG, not medical boards or county prosecutors

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 if they need care that is unavailable in Idaho, such as termination for medical reasons related to fetal anomalies or complications that put a pregnant patient’s health at risk.

Since the letter became public, physicians who provide reproductive care have said they would not provide any type of referral for termination of a pregnancy, leading to some patients reporting physicians talking about their options in coded language to avoid any potential legal trouble. Health care providers who violate Idaho’s abortion statute are subject to the 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. However, Winmill’s injunction only applies to Labrador, as he said in his opinion it is unclear how the state boards could enforce the law. Winmill took no action in the Monday ruling that would apply to any individual county prosecuting attorneys and noted that would come in a separate decision at a later date.

After Planned Parenthood filed the lawsuit on April 5, Labrador sent a follow-up letter to Crane stating the opinion was procedurally improper and therefore void. But Labrador did not say the interpretation of the law was incorrect, and attorneys representing Labrador’s office confirmed again during oral arguments that they would not say the legal interpretation in the letter was wrong or provide any assurances to the court or medical providers that the abortion statute would not be enforced in the way the letter implied.

Winmill noted that as a fatal blow to Labrador’s case.

“It would not have been particularly difficult for the state to definitively establish that no case or controversy exists,” Winmill wrote. “Instead, the attorney general has strained at every juncture possible to distance himself from his previous statement without committing to a new interpretation or providing any assurances to this court or the medical providers. Attorney General Labrador’s targeted silence is deafening.”

Monday’s ruling is the second significant injunction Winmill has issued related to Idaho’s abortion laws and its physicians in the past year. In August, he prohibited emergency room physicians in Idaho from being prosecuted for providing abortion care to stabilize a patient in an emergency situation, citing the federal Emergency Medical Treatment and Labor Act. He recommitted to that order after the Idaho Legislature’s attorneys asked Winmill to reconsider in February. The attorneys appealed the decision to the Ninth Circuit Court of Appeals, where it is still under consideration.

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Kelcie Moseley-Morris
Kelcie Moseley-Morris

Kelcie Moseley-Morris is an award-winning journalist who has covered many topics across Idaho since 2011.