Idaho’s Application of State’s Abortion Law to Provider Out-of-State Referrals Remains Enjoined After Ninth Circuit Ruling
- December 06, 2024
The Idaho Attorney General (AG) remains enjoined from prosecuting medical providers under the state’s criminal abortion statute for providing information about or referring patients for legal out-of-state abortion services after a Ninth Circuit panel decision on December 4.
Idaho’s criminal abortion statute makes performing an abortion a felony punishable by at least two and up to five years’ imprisonment. The statute also calls for the suspension or permanent revocation of health care professionals’ licenses if they “assist” in performing an abortion.
Planned Parenthood Greater Northwest and two physicians brought the instant action after a March 2023 letter drafted by AG Raúl Labrador for a state lawmaker was posted publicly by a third-party organization. The letter interprets the “assists” in performing language as prohibiting medical providers from referring or prescribing abortion pills for women to access across state lines. The AG withdrew the letter after the lawsuit was filed on procedural grounds.
The U.S. District Court for the District of Idaho granted plaintiffs a preliminary injunction after finding they were likely to succeed on the merits of their claim that the AG’s interpretation of the Idaho criminal abortion statute unconstitutionally prohibited their speech in violation of the First Amendment. The Ninth Circuit panel affirmed.
As a threshold issue, the appeals court found plaintiff physicians had standing—they previously provided information about and made referrals for out-of-state abortion services but stopped doing so since the AG’s letter became public—and the action was ripe for review.
Plaintiffs demonstrated a substantial threat of enforcement—namely, through their “self-censorship” since the letter became public and the AG’s refusal to disavow his interpretation of the abortion statute. Based on the record, the appeals court found a “significant likelihood” that a county prosecutor could rely on the opinion letter’s interpretation to support enforcement.
The appeals court also found the AG’s withdrawal of the letter shortly after the case was filed did not moot the action. The AG withdrew the letter on procedural grounds and has never stated the law would not be enforced in such a manner.
In addition, the appeals court rejected the AG’s argument that he was not a proper defendant under the Eleventh Amendment because he lacked authority to enforce a penal statute directly. According to the Ninth Circuit, the AG was a proper defendant because he had authority to “assist” local prosecutors in enforcing the statute.
Turning to the merits, the appeals court held plaintiffs were likely to succeed on their claim that the AG’s interpretation of the law was “a content-based restriction on speech” that “silences healthcare providers on the specific topic of abortion” in violation of the First Amendment.
Planned Parenthood Greater Northwest v. Labrador, No. 23-35518 (9th Cir. Dec. 4, 2024).