Is it legal to refer a patient outside Idaho for an abortion? Depends on the week | Opinion
Within the space of two weeks, the Attorney General Raúl Labrador has flip-flopped on the legality of referring patients seeking abortions to out-of-state clinics.
It’s the clearest demonstration yet that it does not pay to have the state represented by a career politician, instead of a career lawyer.
Late last month, House State Affairs Committee Chairman Brent Crane, R-Nampa, asked Labrador whether referring a patient outside Idaho, or prescribing abortion medications that could be picked up outside Idaho, would violate Idaho’s abortion laws.
Labrador, with his personal signature on the March 27 letter, told Crane: “Idaho law prohibits an Idaho medical provider from either referring a woman across state lines to access abortion services or prescribing abortion pills for the woman to pick up across state lines. Idaho law requires the suspension of a health care professional’s license when he or she ‘assists in performing or attempting to perform an abortion.’”
But just a few days later, facing a federal lawsuit, Labrador’s lawyers told federal Judge B. Lynn Winmill that he had rescinded it, according to CNN, so the issue was moot.
So, according to Labrador, a few weeks ago the law required license suspension for any doctor who referred a patient out of state for an abortion. But as of last week, it’s just fine.
Which version was right? I’m not a lawyer, so it’s hard for me to say.
But there is one thing I can say for certainty: The legal advice given out by the Office of the Attorney General is at this point unreliable.
This is exactly what many — including former Attorney General Lawrence Wasden, Labrador’s primary opponent, and Tom Arkoosh, Labrador’s general election opponent — warned about during campaign season. Labrador is a political animal with a lot more experience in legislative bodies than courtrooms, so the task now before him is fundamentally unfamiliar to him.
When you fire off a shocking press release in Congress, you insert yourself into the cable news cycle. It’s a thoroughly unserious place, and that’s politics.
Things are different when you are the state’s chief law enforcement officer. When a person like that issues an opinion about what the law says, someone might get arrested.
Or the state might get sued and lose.
On the campaign trail, Labrador promised to be a partner with conservatives in the Legislature, to help them defend their positions in court. But hearing words you like doesn’t get you any closer to enacting the policies you want. It just lets you feel justified for a little while before the courts slap you down.
In this case, for less than two weeks.
Labrador is likely to justify this reversal by emphasizing that his original opinion was meant as a private opinion for lawmakers, not as guidance to law enforcement. But if an interpretation of the law is good, it doesn’t change based on the audience.
Wasden habitually likened himself to an umpire, calling balls and strikes. And the office he built was pretty good at it. When they told the Legislature it would get sued and lose, they were usually right.
This often drove some lawmakers crazy, since the most common scenario was an opinion stating that their latest preferred policy was unconstitutional. So they often ignored him.
The Idaho Constitutional Defense Fund has paid out some $3.2 million in taxpayer dollars for unconstitutional things the state did, largely bills passed by the Legislature. If lawmakers had heeded Wasden’s advice, that figure would be much lower.
Just as advertised, Labrador is different. There’s no one telling conservative lawmakers, “you’ll lose in court,” anymore.
There’s no strike zone. Wherever the pitch is thrown, if a conservative is at bat, it’ll be called a ball. Which is great for their egos and all.
But it’s far from clear that the right has gained anything real in this trade. Labrador doesn’t have the final say on anything, as his sheepish reversal in front of Judge Winmill demonstrates.