Idaho medical providers can continue to refer patients to out-of-state abortion services following ruling

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A federal judge has ruled that it would violate Idaho medical providers' free speech rights to sanction them for referring patients to out-of-state abortion services, rejecting the state attorney general’s interpretation of Idaho’s abortion ban.

Idaho's law makes it illegal to perform or attempt to perform an abortion, a crime punishable by two to five years in prison. It also makes it unlawful for health care professionals to assist in the provision or attempted provision of one, with the penalty being the suspension or loss of their medical license.

Republican Idaho Attorney General Raul Labrador wrote a letter to a conservative lawmaker in March in which he opined that referring a patient to legal abortion services in other states would constitute assisting in an abortion or attempted abortion — and thus would require the suspension of the health professional's license.

Planned Parenthood and several medical providers sued the next month, arguing such a restriction would violate their First Amendment right to free speech. Health care providers are not restricted from referring patients out of state for prenatal care or other treatment, they noted.

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Medical professionals "will be forced to choose between facing criminal penalties themselves and offering referrals and information about legal out-of-state medicinal services to their patients," U.S. District Judge B. Lynn Winmill wrote in his order Monday. "Simply put, their speech will be chilled."

The case is one of two targeting Idaho's strict abortion laws. A separate lawsuit challenges a new Idaho measure making it illegal to help minors get an abortion without parental consent. Attorneys general from 20 states filed a brief Tuesday urging the court to block it.

"The Constitution protects the individual right to travel between states, and Idaho’s radical Legislature cannot abolish that right," Democratic Washington Attorney General Bob Ferguson said in a statement.

Even before the U.S. Supreme Court's Dobbs decision last year overturned the landmark abortion rights ruling in Roe v. Wade, some Idaho residents traveled to neighboring states for the procedure just because they had the closest clinic.

Abortion rights protestors hold signs outside the Idaho Statehouse in downtown Boise, Idaho, on May 14, 2022. (Sarah A. Miller/Idaho Statesman via AP, File)

But in the following year, with abortion criminalized in Idaho, its neighboring states saw a significant increase in abortions, including almost 1,500 in Washington, more than 1,300 in Oregon and nearly 2,600 in Nevada, according to data from the Society of Family Planning.

"Providers shouldn’t face the threat of punishment for helping their patients obtain the abortion care they need in states where abortion is legal," said Meagan Burrows, staff attorney with the American Civil Liberties Union's Reproductive Freedom Project.

Winmill's order blocked the Office of Attorney General from enforcing Idaho's criminal abortion law as Labrador interpreted it. For technical and procedural reasons, he did not block the state boards of medicine and nursing from suspending the licenses of providers who refer patients for abortions out of state or who prescribe abortion drugs for patients to pick up in another state.

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However, Colleen Smith, a participating attorney with ACLU of Idaho, said the plaintiffs were confident that the same rationale the judge applied to the attorney general's office should also apply to the boards.

The boards have not indicated they intend to start suspending the licenses of providers in such cases. Bob McLaughlin, a public information officer with the Idaho Division of Occupational and Professional Licenses, said the Idaho Board of Medicine does not comment on pending litigation.

"We think that they’ve probably gotten the message, based on what the court decided, that that’s not an appropriate interpretation," Smith said.

Stanton Healthcare, an anti-abortion pregnancy center in Boise, said in a statement it was "deeply troubled" by Winmill's order and that it would "only serve to promote ‘abortion trafficking.’"

"This decision flies in the face of the Idaho legislature which built a wall of protection around women and their preborn children through life-affirming legislation which promotes well-being and hope," the statement said.

Labrador's office argued it does not have the authority to criminally prosecute providers who refer patients out of state. Further, the state's attorneys noted, Labrador formally withdrew the letter after the lawsuit was filed, saying its analysis was "void."

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Beth Cahill, communications director for the attorney general's office, suggested Winmill, who Democratic President Bill Clinton appointed in 1995, was biased.

"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," Cahill said. "Judge Winmill wants to restrain a power we don’t possess. We strongly disagree with his order."

Winmill noted in his order that while Labrador had issued a subsequent letter withdrawing his legal opinion, the attorney general has not actually disavowed its reasoning — which could carry heavy weight among the state's county prosecutors.

"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," Winmill wrote. "Attorney General Labrador’s targeted silence is deafening."