Idaho Abortion Travel Advice Ban Letter Draws Judge’s Skepticism

Abortion providers and Idaho’s top attorney squared off in federal court Monday over an opinion letter that says the state can prosecute doctors who provide travel advice or assistance to patients.

Judge B. Lynn Winmill of the US District Court for the District of Idaho said that he was leaning in favor of blocking prosecutors from acting on advice from Attorney General Raúl Labrador (R), given in a letter, that the state’s total abortion ban prohibits doctors from telling their patients about traveling to states where abortion is legal. The letter was issued in response to a question from a lawmaker and has since been withdrawn by Labrador.

This suit doesn’t target Idaho’s abortion law itself. Instead, Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky and two doctors argued that Labrador’s interpretation of the ban subjects them to threats of prosecution for exercising free speech rights. They sought an order blocking Labrador and state prosecutors from enforcing the law in this manner.

The lawsuit previews a new frontier in abortion litigation, as states are exploring ways to prevent their citizens from traveling to other states where abortion is legal to undergo the procedure. Arkansas, Missouri, and South Dakota have considered enacting such travel bans, and Texas’ anti-abetting law could work as a de facto ban.

The scope of this hearing, however, was mostly limited to the issue of standing, as the attorney general argued that the letter couldn’t reasonably have raised abortion providers’ fears that they’d be prosecuted for talking to patients about having abortions elsewhere.

Threat of Prosecution

Arguing for the plaintiffs, Peter Neiman of Wilmer Cutler Pickering Hale & Dorr LLP said the plaintiffs have standing because they face a credible threat of being prosecuted for conduct that Labrador said violates the state’s abortion ban.

Before the letter was made public, the doctors “knew exactly what to do,” Neiman said. They couldn’t perform abortions under the law, but they could tell patients that going to another state where abortion is still legal was an option.

Following the release of Labrador’s opinion, the doctors fear they’ll lose their medical licenses if they tell patients even that limited amount of information, he said. The letter clearly is chilling their constitutionally protected speech, Neiman said.

Misleading Claims

The plaintiffs’ lawsuit is misleading, Lincoln Wilson of the Idaho Attorney General’s Office, said.

The letter doesn’t set out a state policy—if it did, the attorney general would be defending it, Wilson said. There’s nothing to defend, he said.

Labrador gets requests from lawmakers all the time, and this letter was in response to one such request, Wilson said. The letter was never intended to be made public or constitute an official policy statement, he said.

Winmill asked how that could be true. Labrador issued and signed the letter in his official capacity, the judge said. “How do you put the genie back in the bottle” now that everyone knows about it, Winmill said.

Wilson said doctors shouldn’t fear prosecution for another reason—the attorney general doesn’t have prosecutorial authority.

Winmill pushed back again. Labrador might not have the ability to bring a lawsuit himself, but local prosecutors do. And, having seen Labrador’s opinion, what’s to stop them from prosecuting a doctor for violating the abortion ban by advising a patient to leave the state, he asked.

Disavowal of Letter

Labrador has withdrawn and disavowed the letter, Wilson said. But Neiman pointed out that the attorney general hasn’t disavowed the opinion.

The attorney general was very careful to reserve his ability to make official the position he took in the letter, Neiman said.

Winmill raised the same point with Wilson, noting that Labrador hasn’t said his opinion was wrong.

He wasn’t required to do so because the letter doesn’t reflect the attorney general’s opinion on Idaho law, Wilson responded.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

Stris & Maher LLP, the American Civil Liberties Union of Idaho Foundation, Planned Parenthood Federation of America, Bartlett & French LLP, and the American Civil Liberties Union Foundation also represent the plaintiffs.

The case is Planned Parenthood Great Nw., Haw. Alaska, Ind., Ky. v. Labrador, D. Idaho, No. 23-cv-142, hearing on preliminary injunction motion 4/24/23.