A Fascinating Case in Idaho

Planned Parenthood Greater Northwest, et al. v. Raul Labrador in his official capacity as Attorney General of the State of Idaho, Members of the Idaho State Board of Medicine and Idaho State Board of Nursing, in their official capacities, and County Prosecuting Attorneys, in their official capacities.

Case No. 1:23-cv-00142-BLW

This case was decided on July 31, 2023.

The Background in the U.S.

Of course, the reason that we have seen so many new state abortion laws and legal challenges is that the U.S. Supreme Court overturned the long-standing precedent set out by Roe v. Wade in its decision last year in the case of Dobbs v. Jackson Women’s Health Organization. The result was that there was no longer a federally-guaranteed period of time during a pregnancy in which an elective abortion could be legally performed. Instead, the right to determine under what conditions, if any, abortion would be legal in a state would be returned to the states, and as a result, laws would be expected to vary from state-to-state.

The Background in Idaho

On March 27, 2023, Idaho Attorney General Raul Labrador issued an opinion in a letter with the subject line “Request for AG Analysis” to Idaho Rep. Brent Crane in response to a request from that legislator asking for guidance as to the following:

Do Idaho’s abortion prohibitions preclude:

1. The provision of abortion pills;
2. The promotion of abortion pills; and
3. Referring women across state lines to obtain abortion services or prescribing abortion pills that will be picked up across state lines?

The answer was yes to all of these activities in the Attorney General’s opinion letter. https://www.courthousenews.com/wp-content/uploads/2023/04/labrador-idaho-opinion-letter.pdf. (It is the AG’s response to the third activity that is the subject of this lawsuit.)

The Attorney General subsequently rescinded the letter stating: “It was not a guidance document, nor was it ever published by the Office of the Attorney General, accordingly, I hereby withdraw it.” Idaho AG walks back opinion on prohibiting referrals for out-of-state abortions | The Hill. The state of Idaho on behalf of the AG claimed to the court that the letter was intended to be a private communication, however, the letter was disseminated to and published publicly by a pro-life organization, in part to further its fundraising efforts.

Plaintiffs (Planned Parenthood Greater Northwest, Dr. Caitlin Gustafson, and Dr. Darin Weyhrich) filed suit in federal district court, challenging the Attorney General’s interpretation of Idaho’s criminal abortion statute, Idaho Code § 18-622 and asking the court to enjoin (prevent by legal order) the Attorney General, the Idaho State Board of Medicine and Board of Nursing, and the prosecuting attorneys for every Idaho county from bringing criminal or licensing actions based upon that interpretation of the law. Although the plaintiffs raised a number of legal theories, the case predominantly rested upon the issue as to whether plaintiffs’ First Amendment rights had been violated (making referrals to out of state providers is considered speech and the allegation was that the threat of prosecution for doing so and the threat of suspension of their medical or nursing licenses for doing so were restraints on their exercise of free speech.)

The Attorney General and some of the other defendants filed a motion with the court to dismiss the lawsuit on the basis of some technical legal doctrines concerning justiciability, which in layman’s terms simply mean that the plaintiffs were not in a position to bring a legal challenge and/or the matter was not one that presented a sufficient basis for a court to review it according to the Defendants. That motion was ultimately dismissed by the Judge.

The specific language in the statute in question stated:

“The professional license of any health care professional who … assists in performing or attempting to perform an abortion … shall be suspended ….” (emphasis added)

In addressing the third activity, the AG stated in his letter: “Idaho law prohibits an Idaho medical provider from … referring a woman across state lines to access abortion services …. 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. Idaho Code § 18-622(2) (emphasis added). The plain meaning of assist is to give support or aid. An Idaho health care professional who refers a woman across state lines to an abortion provider … has given support or aid to the woman in performing or attempting to perform an abortion and has thus violated the statute.”

The statute allowed for no flexibility on the part of the licensing boards, but rather states that the provider’s license “must” be suspended for six months upon the first offense, and permanently revoked upon the second.

The letter was printed on Idaho State Attorney General office stationery and the title of Attorney General was added below General Labrador’s signature.

The Court’s Decision

The focus of the Court’s analysis rests on the Plaintiffs’ claim that the Attorney General’s interpretation of the criminal statute would violate their First Amendment rights of free speech and the Attorney General’s assertion that there is no threat to Plaintiffs because his letter opinion was withdrawn. 

It was notable to the Court that plaintiffs had previously made referrals for abortion services to out-of-state providers, but stopped doing so after the AG’s letter became public. On the other hand, the AG argued that letter could not constitute a threat of prosecution because it “was sent to one legislator as private legal advice [and] it was not published by the Attorney General or offered as guidance in any capacity.” Further, the state also claimed that there is no threat here because the AG lacks any authority to direct the county prosecutors or prosecute violations of the criminal abortion law.

The Court, however, took note of the fact that the AG’s letter was widely disseminated and became widely available to the public, and further, that this letter was issued and signed by Attorney General Labrador – Idaho’s chief legal officer – and was sent to a member of the Idaho legislature. Whether the guidance was official or not, it was the only guidance provided by the AG, and it nevertheless had a chilling effect on the plaintiffs’ First Amendment rights.

Further, while the state, in representing the AG, asserts that there is no prosecution threat because the AG’s letter was withdrawn, the Court takes notice of the fact that the AG does not disavow that opinion. The Court observed that the AG’s letter was withdrawn just hours before the first status conference in this litigation and appeared only to be for litigation positioning as opposed to a change in view or interpretation of the statute by the AG, and thus the withdrawal was not a disavowal. In fact, when counsel for the state were asked whether the AG or prosecuting attorneys disavowed the legal analysis or conclusion of the AG’s letter, they admitted that there was no such disavowal.

The Court notes that the legal theory upon which defendants seek to have the case dismissed is that of mootness – “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” However, a defendant cannot render a case moot simply by ending its unlawful conduct, because the defendant could simply resume that conduct after the case was dismissed. Instead, to prevail on a motion to dismiss the case for mootness, the defendant “has the heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again.” In the case of a governmental defendant, the defendant must demonstrate that the change in its behavior is “entrenched” or “permanent.” Given that the withdrawal of the AG’s opinion does not reject the statutory interpretation or provide an exception that would exempt the plaintiffs’ free speech from criminal prosecution, the matter before the Court is not rendered moot by the withdrawal of the letter. In fact, there is no evidence that the Attorney General’s position has changed.

Further, although there have been amendments made to the statute, none of those change the relevant language at issue in this case.

For all of these reasons, the Court found that the Plaintiffs were successful in demonstrating that there is a genuine threat of prosecution. The consequence of the threat is a chilling of the Plaintiffs’ Frist Amendment right of free speech. The rescinding of the letter by the AG, without revising or rejecting the legal analysis contained in the letter does nothing to ameliorate this threat or to render the Plaintiffs’ lawsuit moot.

As Judge Winmill stated in his opinion: “…It would not have been particularly difficult for the State to definitively establish that no case or controversy exists (“case or controversy” has a special legal meaning derived from the U.S. Constitution in conferring jurisdiction upon a court. If there is no case or controversy, then the court has no legal power to hear and decide the case. For example, if someone owes you $10, and refuses to pay you, but over time you reach an agreement that you will accept $5 as payment in full, endorse the check with the statement “Paid in Full,” and deposit the check, but then later decide to sue the person for the $5 balance, there would be no case or controversy since there was a mutual agreement and satisfaction of the debt.). That is, all it would have taken is for Attorney General Labrador to denounce the Crane Letter’s interpretation or make an affirmative statement that he, or his office, will not enforce Idaho’s criminal abortion statute in such a manner. 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.”

Based upon all of the above, the Court then proceeded to issue a preliminary injunction that prevents Attorney General Labrador from enforcing Idaho’s criminal abortion statute as interpreted in his letter.

Readers are going to hear about a number of important cases that are based upon the First Amendment’s right to free speech. Unlike this case, some very high-profile cases pending before courts currently are using this First Amendment right as a defense to conduct for which they have been charged. Therefore, in future blog posts, we will review the First Amendment right to free speech, how courts have decided these issues in the past, and whether doctors have a First Amendment right to spread disinformation.