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Idaho Attorney General's Abortion Opinion Shows Overturning Roe Was Only the Beginning

Idaho Attorney General Ra煤l Labrador
We鈥檙e challenging the attorney general鈥檚 unconstitutional opinion, which threatens to reach across state lines to limit abortion access.
Idaho Attorney General Ra煤l Labrador
Ryan Mendias,
Staff Attorney,
老澳门开奖结果 Reproductive Freedom Project
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April 25, 2023

When the Supreme Court overturned a half-century of precedent last June and eliminated the federal constitutional right to abortion first recognized in Roe v. Wade, anti-abortion politicians claimed that the court was doing nothing more than sending the issue back to the states, allowing each to decide for itself how to regulate abortion. Late last month, Idaho Attorney General Ra煤l Labrador made crystal clear just how false that claim was.

In response to an inquiry from an anti-abortion state politician 鈥 asking on behalf of a constituent who wants to 鈥 Attorney General Labrador issued a , declaring that Idaho鈥檚 total abortion ban 鈥減rohibits an Idaho medical provider from ... referring a woman across state lines to access abortion services.鈥

Idaho cannot ban truthful speech about the availability of legal abortion services in other states without violating the First Amendment.

According to the Idaho attorney general, a health care provider who gives any support or aid to a person seeking an abortion outside of Idaho 鈥 even in places where abortion remains legal 鈥 has broken Idaho law. In other words, under the attorney general鈥檚 misguided opinion, providing a woman with a referral for abortion care out of state, or even simply giving her information about the availability of abortion in a state where it鈥檚 legal, would violate the ban and could cost health care providers their licenses and livelihoods, and even put them at risk of facing criminal penalties.

This dramatic and far-reaching interpretation of Idaho law violates the free speech rights of health care providers in Idaho who desire to give their patients complete information, in accordance with their professional and ethical duties, and their consciences. Idaho cannot ban truthful speech about the availability of legal abortion services in other states without violating the First Amendment.

The interpretation is also premised on the attorney general鈥檚 dangerous and unprecedented view that Idaho law applies to abortions provided outside of Idaho鈥檚 borders 鈥 in states like Washington, Oregon, or California, where abortion remains legal. Not only is this interpretation wrong on the face of Idaho law, it also violates the Due Process Clause, which prevents the arbitrary and unpredictable denial of liberty, as well as the so-called Dormant Commerce Clause, which forbids states from regulating commerce (including health care) that occurs wholly in another state. This kind of interstate meddling reveals the bad faith behind the claim that, after Roe was overturned, abortion access would be governed state by state.

We鈥檙e showing up in Idaho and across the country to make sure that every person has the right to make the best decisions for their health and future, regardless of where they live.

Permitting the attorney general鈥檚 interpretation of Idaho law to stand would have far reaching implications for a wide range of conduct, from abortion, contraception, and gender-affirming care; to any activity about which states have divergent policies. Indeed, it is already severely impacting the care that health care providers in Idaho can provide to their patients. Today, as a result of the attorney general鈥檚 opinion, doctors have been forced to deny critical information to people in need of care. And, in situations where an abortion is necessary to preserve the health of the pregnant patient, the attorney general鈥檚 interpretation can be downright dangerous by denying patients information about their options and potentially delaying them from accessing the care they desperately need.

That鈥檚 why two physicians in Idaho represented by the 老澳门开奖结果, along with our allies at Planned Parenthood and the law firm WilmerHale, have challenged Attorney General Labrador鈥檚 unconstitutional interpretation of Idaho鈥檚 abortion ban in federal court. Earlier this week, the court held a hearing where we urged the judge to temporarily prevent the attorney general, the state boards of nursing and medicine, and Idaho鈥檚 local prosecutors from taking any steps to enforce Idaho鈥檚 ban against individuals for providing referrals for or information about out-of-state abortion care, or for actually providing that care in states where it鈥檚 legal. We hope the court will swiftly act to protect the constitutional rights of Idaho providers and the health of Idaho patients by issuing a preliminary injunction that would block the attorney general and other enforcers from applying Idaho鈥檚 ban in the manner contemplated in his opinion.

Since Roe v. Wade was overturned less than a year ago, there has been an unrelenting barrage of attacks on abortion 鈥 even in states that have already completely outlawed this vital reproductive health care. We鈥檝e always known that the war on reproductive freedom would not end with Dobbs, and Idaho鈥檚 latest attempt to punish those helping pregnant individuals access abortion care in the states where abortion remains legal is just the latest chapter in this ongoing fight. Anti-abortion extremists are sure to continue to push similar efforts to impose abortion bans far beyond hostile states鈥 borders in their campaign to eliminate abortion access nationwide. The only question is whether the courts will let them. We鈥檙e showing up in Idaho and across the country to make sure that every person has the right to make the best decisions for their health and future, regardless of where they live.

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