Can Idaho doctors refer patients to other states for abortions? Federal judges weigh in
A federal court has denied Idaho Attorney General Raúl Labrador’s appeal for another District Court judge to oversee an abortion lawsuit, kicking back a decision on whether doctors can refer patients out of state down to a lower court.
The federal court also upheld an injunction barring Labrador or Idaho prosecutors from pressing charges against doctors who refer their patients to other states for the procedure.
It was the second ruling of the week issued by the 9th Circuit Court of Appeals on Idaho abortion lawsuits. The panel Tuesday also ruled mostly in favor of Idaho’s law that bars adults from transporting minors out of state for the procedure.
The lawsuit against Idaho was filed in April 2023 by two Idaho physicians and Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky. Drs. Caitlin Gustafson and Darin Weyhrich and the reproductive health care group filed the lawsuit days after Labrador sent a letter to Rep. Brent Crane, R-Nampa, stating Idaho doctors could face prosecution for referring patients out-of-state for abortions.
U.S. District Court Judge B. Lynn Winmill issued a preliminary injunction in July 2023 to prevent Labrador or county prosecutors from pursuing charges over out-of-state abortion referrals. Labrador appealed the decision — and asked the appeals court to reassign the case to a different judge — the following day.
The appeals court panel upheld Winmill’s injunction and sent the case back to the District Court judge for further proceedings. The opinion noted that Labrador “has not come close” to meeting the standard for reassigning a case, which happens only when a judge’s bias makes it impossible for them to hear a case fairly.
Planned Parenthood applauded the decision in a news release Friday morning but said the “egregious efforts to limit Idahoans’ freedom won’t stop here.” Gustafson, who is also the president of Idaho Coalition for Safe Healthcare Foundation, told the Idaho Statesman in a separate statement that the ruling is a First Amendment and reproductive health care win.
Dan Estes, spokesperson for the Attorney General’s Office, said in an emailed statement that the office is “reviewing the details of the decision and considering our options for appeal.”
The decision came days after a different panel reversed most of U.S. Magistrate Judge Debora K. Grasham’s ruling on Idaho’s so-called “abortion trafficking law,” banning people from helping minors obtain abortions in other states without parental approval.
Labrador withdrew, but didn’t disavow, abortion referral letter
Labrador has since backpedaled on the letter he wrote to Crane. The March 2023 letter was an interpretation of Idaho’s near-total abortion ban after the state lawmaker requested the attorney general’s opinion on the legality of referring patients to other states for abortions. Labrador wrote that an Idaho health care professional who refers a patient to an out-of-state abortion provider or writes a prescription for an abortion pill to be filled out of state would be violating state law, which bars health care providers from assisting in performing or attempting to perform an abortion.
Labrador emphasized the part of the law that forbids assisting in an abortion, putting the phrasing in italics.
“The plain meaning of assist is to give support or aid,” he wrote. “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.”
The punishment for violating the law includes suspension or permanent revocation of the doctor’s medical license as well as prison time.
According to Wednesday’s opinion, Labrador told the Circuit Court judges in a brief that his correspondence with Crane was meant to be private despite being published on his office’s official letterhead. Instead, the letter was obtained by a third party and published publicly.
The plaintiffs filed their lawsuit days later and argued that their First Amendment rights to free speech were violated by Labrador’s letter, since they no longer felt safe to provide patients with information about abortion options out of state.
After the plaintiffs filed their lawsuit, Labrador sent a second letter to Crane that said his analysis was “mischaracterized as law enforcement guidance.” Labrador withdrew the letter but didn’t disavow the interpretation, the opinion said.
Labrador attempted to file supplemental briefs with the District Court after withdrawing the letter, but Winmill denied them and said Labrador should’ve addressed the issues sooner rather than cause court delays. The Wednesday opinion said Winmill was well within his right to deny the filings.
Labrador’s office criticized Winmill’s ruling last year shortly after he issued the injunction.
“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,” a spokesperson for the attorney general’s office told the Idaho Statesman at the time.
The appeals court judges said they, like Winmill, believe the Idaho physicians and Planned Parenthood showed proof that there was a substantial threat of Idaho officials enforcing Labrador’s interpretation of the abortion ban.
The case will return to Winmill for further proceedings.
This story was originally published December 4, 2024 at 5:12 PM.
