Judge denies AG appeal of abortion decision

A federal judge denied a motion Tuesday by Idaho’s attorney general to dismiss a case, one day after he had blocked the AG’s office from punishing doctors for referring patients out of state for abortions.

Judge Lynn Winmill issued a 60-page opinion Monday evening and denied the appeal Tuesday from Attorney General Raúl Labrador’s office.

Labrador’s office had argued that, because the opinion has since been withdrawn because of a procedural problem, the case should be dismissed.

The case was brought against the state’s chief legal officer by Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky and two Idaho health care providers.

Idaho Attorney General’s Office Communication Director Beth Cahill wrote in an emailed statement, “In his 28-year career you’d be hard pressed to find a time when Judge Winmill has ruled against Planned Parenthood, so his decision is not surprising. Judge Winmill wants to restrain a power we don’t possess. We strongly disagree with his order.”

The plaintiffs had to show that they had reasonable fear of being prosecuted under the opinion and that it changed their behavior. Winmill wrote in his opinion that the doctors provided enough evidence to show that, before the opinion was made, they had referred patients out of state and then stopped after the letter circulated.

Labrador’s office had argued that because the letter was withdrawn and because it was meant to be given as private legal advice for only Rep. Brent Crane, R-Nampa, under attorney-client privilege, that the medical providers wouldn’t be threatened under it.

“The State’s first claim ignores the reality of the circumstances,” the opinion states. “Even if the Crane Letter was intended as ‘private legal advice,’ the letter was promptly disseminated and became widely available to the general public ... Moreover, while the State tries to diminish the letter’s significance by framing it as akin to any attorney providing advice to any client, it cannot be ignored that this letter was issued and signed by Attorney General Labrador — Idaho’s chief legal officer — and was sent to a member of the Idaho Legislature. More importantly, this letter contained an expressed interpretation of Idaho’s criminal abortion statute, which is the only available written interpretation of the statute, public or not, by Attorney General Labrador. The State’s argument that the Crane Letter was not an ‘official’ statement does not negate the effect of the letter.”

Colleen Smith, an attorney from the ACLU of Idaho who worked on the case, said the group is “grateful to receive this clarification on the law from the Court.”

“Our clients can now confidently return to providing their patients with the out of state referrals they were providing before the Attorney General’s March 27 letter and that they need to provide to ensure their patients receive necessary care,” Smith said in an emailed statement. “The Court did the right thing by affirming the rights of healthcare providers and their patients to live and practice in an already challenging environment.”

Winmill heard arguments at a hearing April 24, which centered around a letter sent to Crane in March regarding interpretation of Idaho’s criminal abortion law that was later provided to Stanton International, an anti-abortion organization, according to court documents. The letter was posted on its website and used for fundraising efforts.

Idaho doctors Caitlin Gustafson and Darin Weyhrich and Planned Parenthood sued on April 5 to block enforcement under the opinion, arguing it chilled free speech and violated constitutional protections against unreasonable searches and seizures.

Rebecca Gibron, CEO of Planned Parenthood Great Northwest, said in an emailed statement she was unsurprised by Labrador’s appeal.

“He can’t claim that he is taking back the contents of the letter with no legal commitment while also appealing the verdict of this case,” Gibron wrote. “The fact that he’s appealing the verdict at all further proves that our lawsuit was necessary in the first place: he plans on going after our providers.”

Guido covers Idaho politics for the Lewiston Tribune, Moscow-Pullman Daily News and Idaho Press of Nampa. She may be contacted at lguido@idahopress.com and can be found on Twitter @EyeOnBoiseGuido.