Alanna Madden

(CN) — Planned Parenthood Great Northwest and two doctors are suing the office of Idaho’s Attorney General Raúl Labrador, claiming his recent "threat" to punish individuals for referring patients to lawful abortion providers out of state violates their First Amendment protected speech.

The lawsuit filed by Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky and doctors Caitlin Gustafson and Darin L. Weyhrich follows nine months of reproductive rights setbacks across several states following the reversal of Roe v. Wade in July 2022. Idaho took an immediate position following the Supreme Court decision's, criminalizing abortion statewide as of August 2022.

Roughly eight months later, on March 27, 2023, Idaho’s attorney general issued a legal opinion interpreting Idaho's abortion prohibitions at the request of state Representative Brent Crane, a Republican from Nampa, Idaho. Labrador asserted Idaho’s ban not only criminalized abortion within the state but also prohibited an Idaho medical provider from referring a woman across state lines to access abortion services.

Labrador also asserted the criminal ban would result required the suspension of a provider’s health care license for doing so.

“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' complaint states.

The attorney general’s office did not immediately respond to a request for comment.

The plaintiffs also claim in their suit that Labrado's interpretation violates due process and the commerce clause.

"The Attorney General's interpretation of the total abortion ban seeks to criminalize otherwise lawful abortion care provided outside the state, and therefore constitutes a regulation of 'commerce that takes place wholly outside of the State's borders,' in violation of the dormant Commerce Clause," the lawsuit states.

The plaintiffs argue that the 14th Amendment prohibits states from applying their laws extraterritorially to criminalize out-of-state activity where it is otherwise lawful and any attempt by Idaho officials to punish providers for providing residents with abortion services in other states violates due process rights.

"As the Supreme Court has made clear, '[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort," the complaint states, citing the Supreme Court's decision in BMW of N.A. v. Gore.

“The same is true for Labrador’s threat of licensing sanctions against Idaho healthcare professionals who ‘assist’ Idaho residents in obtaining such an out-of-state abortion by, for example, providing information or referrals,” the complaint continues. “The attorney general’s interpretation of the total abortion ban violates fundamental principles of due process and must be declared unlawful.”

Andrew Beck, senior staff attorney for the American Civil Liberties Union Reproductive Freedom Project, who is part of the legal team representing the plaintiffs in the case, said in a statement that Labrador’s opinion is “blatantly unconstitutional and a dangerous threat to pregnant people in Idaho and the health care providers who they rely on.”

“The opinion essentially puts a state-mandated muzzle on health care providers, stopping them from giving patients important and potentially life-saving information about where to get the medical care they need,” Beck said. “This brazen attack on the reproductive freedom of Idahoans will not stand. We hope the court will recognize the clear constitutional violations of this action and immediately stop it from being enforced.”

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