Federal judge hears arguments on AG’s abortion law opinion
By Ruth Brown, Idaho Reports
U.S. Idaho District Judge B. Lynn Winmill heard arguments Monday in a virtual hearing over a lawsuit revolving around an opinion on abortion law from Attorney General Raúl Labrador.
The lawsuit came after a March 27 opinion from Labrador, sent to Rep. Brent Crane, R-Nampa, stated that Labrador believes the abortion law in Idaho prohibits medical providers from referring a woman across state lines to access abortion services. The Attorney General’s Office later withdrew the letter.
Planned Parenthood Great Northwest, Hawaii, Indiana, Kentucky filed the lawsuit but multiple physicians, including St. Luke’s Hospital System – Idaho’s largest hospital network – filed motions in support of a request for court intervention.
Planned Parenthood and plaintiffs claim they still are unable to consult appropriately with clients after the release of Labrador’s opinion.
“The withdrawal of that opinion should have ended any arguable legal controversy over the matter. But it didn’t,” the AG’s Office wrote in a response to the lawsuit. “Plaintiffs still claim they need an injunction against a purported ongoing threat from a now-rescinded letter that the Attorney General never enforced and has no power to enforce. The law says otherwise: Plaintiffs’ claims suffer from multiple jurisdictional defects that preclude an injunction and mandate dismissal.”
Winmill questioned Chief Deputy Attorney General Lincoln Wilson on the subject multiple times, saying while Labrador has withdrawn the opinion, he hasn’t disavowed its content.
Wilson said that’s correct, but that the framing of the issue matters. He stressed that any prosecution would not be done at the hands of the attorney general, but by a county prosecutor. Wilson said Labrador has no opinion on the issue and hasn’t threatened any physicians.
Winmill pushed back, saying the letter is out there now and he questioned how that opinion could be ignored.
“I don’t know how you put that genie back in the bottle,” Winmill said.
Wilson said the attorney general’s opinion came at the request of Rep. Crane, but it was then released to a constituent who posted the opinion online.
“We wouldn’t characterize it as a mistake,” Wilson said. “We would consider the request of this opinion as a misuse of the opinion process.”
During past Legislative sessions, lawmakers regularly requested an attorney general’s opinion on legislation and then released that opinion to the media, lobbyists and constituents.
Peter Neiman, an attorney for the plaintiffs, told Winmill it should have been easy for the attorney general to renounce that letter, adding he thought it was reasonable to ask why he hasn’t.
“My clients radically changed their behavior after the March 27 letter,” Neiman told the court.
It is the plaintiffs’ belief that they are no longer allowed to make out-of-state referrals for abortion without the threat of prosecution.
“Labrador’s interpretation is unprecedented and amounts to a clear threat that Idaho will seek to punish individuals for speech and conduct related to abortions that take place in states where abortion is legal,” the plaintiffs wrote in the initial complaint.
St. Luke’s is not a party to the lawsuit, but on Friday, the healthcare system filed a brief supporting the plaintiff’s request for a preliminary injunction and to deny the AG’s request for dismissal.
“(St. Luke’s) providers and nurses treat patients millions of times each year, including 1,022,571 hospital visits, 207,062 emergency department visits, and 1,872,601 clinic visits in 2021 alone,” St. Luke’s attorneys wrote. “Many of those patients are pregnant women; St. Luke’s helps to welcome thousands of newborns each year, more than any other provider in the state.”
The brief offers an example of a St. Luke’s physician who treated a patient prior to the enactment of Idaho’s criminal abortion law, known as the trigger law, that went into place after the reversal of Roe v. Wade.
The patient “was transferred to the hospital with dangerously high blood pressure and an extremely inflamed liver; she had a severe form of preeclampsia, for which the standard of medical care is delivery. Although the fetus was several weeks from viability, and although the mother deeply wanted to carry the pregnancy to term, her health was deteriorating; had she continued with her pregnancy, she would have been at great risk of stroke, liver rupture, and death. The physician explains that they had an ‘excruciating’ discussion ‘with the family, but it was clear that the only way to preserve the mother’s life was to induce labor,’” the brief states. “Today, the physician is uncertain not only as to whether the patient could receive the standard medical care for this condition in Idaho—and if so, how long the physician would have to wait before inducing labor, and whether that induction would be justified under the law— but also whether the patient may even be referred out of state to receive it.”
St. Luke’s offered other examples of pregnant women the hospital previously treated who could have been jeopardized with this interpretation of the law in place.
“The Attorney General’s April 7 letter, which purports to ‘withdraw’ his earlier legal interpretation, does nothing but contribute to the confusion. For a physician trying to make a judgment call in a high-stakes situation for their patient, the complex legal landscape and patchwork of conflicting letters is not enough for them to rely on,” the hospital system writes.
The hospital system mentioned in its brief the shortage of OBGYN physicians in the state and how the law contributes to it, going on to outline the state’s maternal death rate being almost double the national average in 2020.
“Worse still, the state has let the Maternal Mortality Review Committee expire, meaning that there is no infrastructure to collect the data on the negative health consequences of the recent legal changes,” St. Luke’s attorney wrote.
The Attorney General’s Office filed a brief requesting that the court deny the submission of St. Luke’s brief as evidence, saying it isn’t timely and “is not helpful.”
Winmill disagreed and allowed St. Luke’s attorney, Wendy Olson, to speak in the hearing Monday. Olson said Labrador’s letter had a chilling effect on providers and the simple, everyday conversations they have with their patients.
“It is important here for Idaho providers to have some legal certainties,” Olson said.
St. Luke’s also has offices in Ontario, Oregon, Olson said in response to a question from Winmill. Winmill noted that leaves the question as to whether a St. Luke’s provider could offer a referral even within its own health system.
Winmill will not make a decision until after attorneys file responses by 5 p.m. Thursday.
In Idaho, all abortion is illegal with rare exceptions for reported rape, incest and the life of the mother.