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 Raúl Labrador made crystal clear just how false that claim was.
In response to an inquiry from an anti-abortion state politician — asking on behalf of a constituent who wants to ban abortion nationwide — Attorney General Labrador issued a letter, declaring that Idaho’s total abortion ban “prohibits an Idaho medical provider from … referring a woman across state lines to access abortion services.”
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 — even in places where abortion remains legal — has broken Idaho law. In other words, under the attorney general’s 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’s 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’s dangerous and unprecedented view that Idaho law applies to abortions provided outside of Idaho’s borders — 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’re 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’s 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’s 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’s interpretation can be downright dangerous by denying patients information about their options and potentially delaying them from accessing the care they desperately need.
That’s why two physicians in Idaho represented by the ACLU, along with our allies at Planned Parenthood and the law firm WilmerHale, have challenged Attorney General Labrador’s unconstitutional interpretation of Idaho’s 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’s local prosecutors from taking any steps to enforce Idaho’s 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’s 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’s 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 — even in states that have already completely outlawed this vital reproductive health care. We’ve always known that the war on reproductive freedom would not end with Dobbs, and Idaho’s 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’ borders in their campaign to eliminate abortion access nationwide. The only question is whether the courts will let them. We’re showing up in Idaho and across the country to make sure that that every person has the right to make the best decisions for their health and future, regardless of where they live.