The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Providing Information About or Referring Patients to Legal Out-of-State Abortion Services" Is Protected …
by the First Amendment, even if the abortion would be illegal in the state, holds a federal judge in Idaho.
From Planned Parenthood Greater Northwest v. Labrador, decided Monday by Judge B. Lynn Winmill (D. Idaho) (and already appealed):
This case involves a challenge to Attorney General Raúl Labrador's interpretation of Idaho's criminal abortion statute, Idaho Code § 18-622. Earlier this year, Attorney General Labrador drafted a letter interpreting this sentence of Section 18-622: "The professional license of any health care professional who … assists in performing or attempting to perform an abortion … shall be suspended …." That letter interprets the "assisting" language to include providing information about or referring patients to legal out-of-state abortion services….
Interestingly, the State did not engage [plaintiffs' First Amendment] argument in any way, relying instead entirely on its jurisdictional challenges [which the court rejected -EV]…. [T]he Court finds that the Medical Providers are likely to succeed on their First Amendment cause of action.
In particular, the Medical Providers contend that the Crane Letter interpretation violates the First Amendment because it impermissibly regulates speech based on content and viewpoint. The Medical Providers explain that the interpretation's prohibition of medical providers offering "support or aid" to a woman seeking an abortion, including "refer[ring] a woman across state lines to an abortion provider[,]" is content-based because health care providers are silenced on a single topic—abortion—and is viewpoint discretionary [sic] because health care providers can provide information and referrals about out-of-state resources like anti-abortion counseling centers or prenatal care. The Medical Providers note that the interpretation is therefore subject to strict scrutiny.
The Medical Providers explain that Crane Letter interpretation "furthers no legitimate state interest, much less a compelling one." They further contend that the State cannot prove that the interpretation is narrowly tailored to further whatever compelling interest could be found because it sweeps in a large swath of obviously protected speech. Because the State has not opposed the First Amendment claim, and because the Court finds the Medical Providers' argument persuasive, the Court finds that the Medical Providers have shown that they are likely to succeed on the merits of their First Amendment challenge.
The correct result, I think. Plaintiffs are represented by Colleen R. Smith (Stris & Maher LLP and ACLU-Idaho Cooperating Attorney), plus too many other lawyers to list here.
