Idaho AG rescinds legal opinion that said health care providers can’t make out-of-state abortion referrals

By Devan Cole, CNN

Two days after being hit with a lawsuit over a legal opinion that said Idaho’s abortion ban prohibits medical providers from referring patients out-of-state for abortion services, the state’s attorney general said Friday that he is rescinding the analysis.

Attorney General Raúl Labrador said a letter from his office had been “mischaracterized as law enforcement guidance sent out publicly to local prosecutors and others.”

“It was not a guidance document, nor was it ever published by the Office of the Attorney General,” he wrote in the letter to state GOP Rep. Brent Crane, adding: “Accordingly, I hereby withdraw it.”

Labrador’s initial letter to Crane last month said that the state’s near-total abortion ban “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.”

Friday’s letter injects fresh uncertainty into whether the lawsuit filed on Tuesday by Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky and two doctors in Idaho will continue.

US District Judge B. Lynn Winmill on Friday said the withdrawal does suggest “that the urgency behind the plaintiffs’ motion for a temporary restraining order may have been somewhat or completely abated.”

Brian Church, an attorney for Labrador, told the judge that the attorney general’s new letter makes it as though his March 27 letter “were never written.”

But that didn’t appear to assuage the concerns raised by a lawyer for the plaintiffs, who told Winmill that he wasn’t presently prepared to withdraw his motion for a temporary restraining order, which would prevent the state from enforcing the guidance for a short period of time before hearings are held in the case.

“I mean, Mr. Church was pretty careful in what he could say and what he couldn’t say. And the thing that he didn’t say is, ‘If your clients continue to make referrals you don’t have to worry that they could face enforcement action,’ right? He didn’t say that,” said Peter Neiman, one of the attorneys representing Planned Parenthood and the two doctors.

“Perhaps (we) get to a point where the emergency is gone. But right now, I still have a situation where I have doctors who need to tell patients what their options are and are not sure if they can do a complete, accurate and fair job of doing that without facing personal risk,” he said.

Lawyers for the plaintiffs argue in the suit that Labrador’s interpretation of the state’s abortion ban runs afoul of several constitutional protections, including the First Amendment’s free speech guarantees.

“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 lawsuit states.

The lawyers described Labrador’s legal opinion as “truly novel” and “shocking,” writing in the suit that his interpretation “risks further isolating Idaho patients by cutting them off from critical health care in other states that is legal in those states.”

The plaintiffs will now decide whether they want to continue seeking emergency relief from the court or to let the lawsuit play out on a normal timeline, with their decision on that likely to be made in the coming weeks.

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