Judge Blocks Idaho From Punishing Doctors for Referring Women Out of State for Abortions

Plus: More takes on the Trump indictment, Biden’s new student loan plan is here, and more…

ELIZABETH NOLAN BROWN

Judge B. Lynn Winmill of the U.S. District Court for the District of Idaho has granted a preliminary injunction against the state enforcing the law in this way.

Under current Idaho law, abortion is almost totally banned, and doctors who perform, attempt to perform, or assist in performing an abortion can have their licenses suspended and be criminally prosecuted. Idaho Attorney General Raúl Labrador stated in a March letter that the law “prohibits an Idaho medical provider from either referring a woman across state lines to access abortion services or prescribing abortion pills for the woman to pick up across state lines.”

Still, Idaho physicians worried that Labrador’s private interpretation of the law might still have some weight. Planned Parenthood of the Greater Northwest and two doctors—Caitlin Gustafson and Darin L. Weyhrich—filed a lawsuit, arguing that Labrador’s interpretation violated the First Amendment and the Fourth Amendment.

Winmill agreed that criminalizing out-of-state referrals would violate the First Amendment. Doctors and clinics would “be forced to choose between facing criminal penalties themselves and offering referrals and information about legal out-of-state medicinal services to their patients,” he wrote. “Simply put, their speech will be chilled.”

Winmill’s ruling, issued Monday, blocks Labrador’s interpretation from being enforced. That means Idaho doctors cannot—at least for now—be prosecuted for helping patients obtain out-of-state abortions.

But Idaho’s abortion ban—passed in 2020 and triggered into effect by the overturning of Roe v. Wade last summer—is still one of the strictest in the nation. It makes it illegal for doctors to perform an abortion at any point in pregnancy except in cases where a mother’s life is threatened or in cases of rape or incest that have been reported to law enforcement.

“Rather than offering a narrow list of exceptions, as other anti-abortion laws do, Idaho’s law simply provides an affirmative legal defense for doctors arrested and charged with performing abortions,” as Reason‘s Emma Camp has noted:

The abortion trafficking law also faces a legal challenge, notes the Associated Press. “Attorneys general from 20 states filed a brief Tuesday urging the court to block it.”

“The Constitution protects the individual right to travel between states, and Idaho’s radical Legislature cannot abolish that right,” said Washington Attorney General Bob Ferguson in a statement.

FREE MINDS

Here’s the point: there are legal and factual defenses to this indictment, but anyone telling you that it obviously, inarguably violates the law is lying to you.

Justice Thomas, in the 2023 case to which National Review alludes, expressly relies on that language to find that the wire fraud statute requires a scheme to take money or (as traditionally defined) property. He does not even mention Section 371, which does not include the “money or property” language and which has a long history of Supreme Court and lower court cases holding that the object of the fraud need not be money or property, but can be interfering with government function.

Reason‘s Jacob Sullum also weighs in, asking if Trump really believed, despite so much evidence to the contrary, that the 2020 election had been stolen from him. “After covering Trump’s election claims since November 2020, I’m still not sure. Fair-minded jurors are apt to have similar doubts,” Sullum writes.

Lastly, the Cato Institute’s Walter Olson offers a nuanced look at strengths and weaknesses of the indictment, noting that it “is likely to raise legal issues that are relatively unfamiliar, uncertain, or both.” Olson continues:

In other words, caution is called for at this stage in predicting the extent to which judges will trim back the scope of this prosecution, if they do. It is widely agreed that the First Amendment protects some telling of lies for political benefit, and also that it protects (as, in effect, lobbying) some efforts to persuade government officials to carry out acts that are wicked and unconstitutional. It is equally certain that the First Amendment does not protect every act of speech or persuasion that someone might retroactively try to jam into these categories. If you shut down a pending courtroom trial by phoning in a false report of a dangerous gas leak, you cannot get off by arguing that you were just exercising your speech and lobbying rights, nor are you likely to get off by arguing that you knew there was a gas stove in the court cafeteria and were basing your 911 call on a sincere belief that there was an elevated risk of asthma from stray methane.

In short, it matters in law and under the First Amendment whether speech and lobbying intended to obstruct proceedings or nullify rights was taken in good faith or otherwise, and deceitfully or otherwise. That is probably one reason why the indictment cites extensive cause to believe that Trump knew his claims of election fraud to be false, rather than wandering around in some sort of fugue state in which he might reasonably believe them to be true.

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QUICK HITS

• As the Biden administration “prepared to launch speedy screenings at Border Patrol holding facilities this spring, authorities pledged access to counsel would be a key difference from a Trump-era version of the policy. So far, that promise appears unfulfilled,” notes the A.P.

• Why middle-aged Americans aren’t going back to church.

• New Bureau of Labor Statistics data show “the number of job openings dipped to its lowest point in more than two years” in June, reports CNN.

• Mashable predicts good things for Threads. “Threads is on course to topple Twitter (or X, if you must),” writes Chris Taylor. “Don’t be surprised if Threads becomes the go-to place for all things trending by the end of 2023.”

• “A bipartisan trio of House lawmakers last week introduced legislation that would allow marijuana users past and present to qualify for security clearances and serve as federal employees,” notes Government Executive.

Since starting at Reason in 2014, Brown has won multiple awards for her writing on the U.S. government’s war on sex. Brown’s writing has also appeared in The New York Times, Los Angeles Times, The Daily Beast, Buzzfeed, Playboy, Fox News, Politico, The Week, and numerous other publications. You can follow her on Twitter @ENBrown.

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