"Abortion is an essential component of women's health care" --- American College of Obstetrics and Gynecology

The remarkable, temporarily-stayed nationwide ban issued last Friday by a far-right, Trump-appointed federal judge on the use of a drug approved by the FDA for medication abortions more than twenty-three years ago, is hardly the only jaw-dropping, radical right-wing assault on medical and reproductive freedoms over the past week. (See our now-updated, detailed coverage from February on that and related cases.)

Threatened with a suspension of their licenses to practice medicine in Idaho if they so much as inform their patients of the availability of lawful abortions in other States, a group of OB/GYNs has now filed a federal lawsuit [PDF] charging a new, near-total state abortion ban, as interpreted by its Republican Attorney General, Raúl Labrador, violates the U.S. Constitution.

The medical professionals, who do not perform in-state abortions, are joined by Planned Parenthood in their suit, filed last week in U.S. District Court.

The suit was triggered by the Gem State AG's recent letter/analysis [PDF] in which Labrador wrote that state law now "prohibits an Idaho medical provider from...referring a woman across state lines to access abortion services." He concluded that informing a patient about the availability of lawful abortions in other States amounts to "assisting" an abortion in violation of Idaho statute. That violation, the AG added, would trigger a suspension of a medical provider's license to practice medicine in the state.

Plaintiffs in Planned Parenthood v Labrador allege Labrador's interpretation of one of the most extreme anti-abortion laws in the nation runs afoul of several Constitutional rights, including their right to free speech. The suit also reveals how Idaho's new application of a "Fugitive Slave Act" mentality appears to violate other provisions of the U.S. Constitution, including the Commerce Clause and the 14th Amendment's Due Process clause...

Big Government intrusion between doctors and patients

Last year, we explained how the infamous Dobbs decision to completely overturn the U.S. Supreme Court's landmark decision in Roe v. Wade (1973) "resurrected a cruel and grotesque division between States that had not existed since the end of the American Civil War."

"Today," we warned at the time, "our nation finds itself mired in an unsustainable, gender-based divide between Free States, where a woman's reproductive liberties are preserved, and Slave States, where reproductive liberties no longer exist." The resurrection of that antebellum divide, we added, has been accompanied by a resurrection of a "Fugitive Slave Act" mentality in which Republicans express a desire to prevent female residents of anti-choice Slave States from traveling to Free States to obtain lawful reproductive care. Citing SCOTUS decisions, we argued that this 21st-century misogynistic "Fugitive Slave Act" mentality runs afoul of a woman's fundamental right to travel.

The physician plaintiffs in the new federal lawsuit in Idaho do not directly challenge the state's near-total ban on in-state abortions. Instead, the complaint focuses on the effort to prevent them from otherwise providing their patients with the comprehensive reproductive care that is mandated by their ethical obligations.

The complaint alleges that comprehensive reproductive care in a State that otherwise bans abortions necessarily includes the ability to "provide patients with information on how to obtain lawful out-of-state abortions when desired by the patient, including at times referring patients to specific out-of-state providers."

One of the physician plaintiffs, in the Planned Parenthood case, doesn't perform abortion services in Idaho. He does, however, provide lawful abortions in another State. Idaho's ban, as interpreted by its AG, prevents him from setting up an out-of-state appointment with an Idaho patient to perform what amounts to a lawful abortion in a different State.

That not only impinges upon a physician's ethical obligation to furnish comprehensive reproductive care, the complaint alleges, but also interferes with a patient's right to receive it. "Patients," they argue, "have a right to seek counsel and medical advice…from their medical provider about all options, including those options --- such as abortion --- that are banned in Idaho but permitted elsewhere."

According to the complaint...

Constitutional violations

Idaho' near-total ban on abortion was a so-called trigger law that took effect last summer after SCOTUS overturned Roe. The state's law has no exceptions, but it allows a provider charged with performing an illegal abortion to try to prove in court that the procedure was needed to save the life of the mother or resulted from rape or incest reported to law enforcement. Otherwise, it mandates 2 to 5 years in prison for a provider convicted of providing an abortion, and the suspension of the medical license of a provider who assists in one.

But this lawsuit doesn't even challenge those aspects of Idaho's law. Citing U.S. Supreme Court caselaw, the physicians argue that preventing them from providing patients with information about the availability of lawful out-of-state abortion services amounts to a content-based restriction on free speech which creates a presumptive violation of the First Amendment to the U.S. Constitution. They also argue that, by seeking "to criminalize otherwise lawful abortion care provided" in other States, the Idaho ban violates the "Commerce Clause of the United States Constitution", as well as the 14th Amendment's due process clause.

UPDATE, 2/26/24:: On July 31, 2023 a three-judge U.S. 9th Circuit Panel, in a unanimous Decision and Order, granted the physician plaintiffs' request for the issuance of a preliminary injunction that prevents Idaho from prosecuting physicians who advice their patients to travel to another state to obtain a lawful abortion.

                 

Article Categories: Rights And Freedoms, U.S. Constitution, Health Care, Republicans, U.S. Supreme Court, Idaho, Planned Parenthood, Raúl Labrador