Echoing the legal reasoning that ultimately forced California to repeal a law banning doctors from sharing state-defined "misinformation" about Covid, a federal appeals panel has also agreed that the state of Idaho cannot prosecute doctors who refer women for out-of-state abortions.
On Dec. 4, a three-judge panel of the San Francisco-based U.S. Ninth Circuit Court of Appeals upheld a ruling from an Idaho federal judge, who had barred the state from enforcing an interpretation of a state law restricting abortion that the state's attorney general should legally bar doctors from helping women in that state obtain abortions.
In the ruling, the panel agreed that interpretation of the law, supported by Attorney General Raúl Labrador, would specifically violate the First Amendment speech rights of doctors, forbidding them from expressing their opinion on the merits of abortion in their professional capacity.
Attorney General Raúl Labrador
| Attorney General Raúl Labrador Official Website
The decision was authored by Ninth Circuit Judge William Fletcher. He was joined in full in the ruling by Judge Kim McLane Wardlaw.
"The professional medical speech at issue here is entitled to at least as much First Amendment protection as other speech," Fletcher wrote.
Fletcher and Wardlaw agreed that the interpretation of Idaho's law amounted to a "content-based restriction on speech because it silences healthcare providers on the specific topic of abortion."
"The interpretation forbids expression of a particular viewpoint - that abortion services in another state would likely held a patient," Fletcher wrote.
The third member of the appellate panel, Judge Eric D. Miller, partially concurred in the decision, saying the panel was correct to affirm the lower court's ruling and reject Labrador's arguments concerning jurisdiction in the case.
But Miller said his colleagues went too far in deciding the case on constitutional grounds, as he asserted the matter had not been appealed on that basis.
The legal action landed in federal court in 2023 when abortion provider Planned Parenthood and a group of Idaho abortion providers and doctors filed suit seeking an injunction blocking Labrador from interpreting Idaho's law restricting abortion to also prohibit doctors from helping guide women to obtain abortions in other states that would otherwise be illegal in Idaho.
The lawsuit did not involve any new legislation from the state capitol.
Rather, the action challenged an interpretation of existing law expressed in a legal opinion letter from Labrador to state lawmakers, specifically saying the attorney general believed state law allowed for the possible prosecution of doctors who may refer women to obtain out-of-state abortions.
In the legal challenge, Planned Parenthood and their fellow plaintiffs asserted that interpretation runs afoul of constitutional speech protections for doctors in Idaho by essentially criminalizing certain kinds of speech.
In federal district court in Boise, U.S. District Judge B. Lynn Winmill agreed with the plaintiffs and issued an injunction blocking the state from acting on Labrador's opinion.
Following that ruling, Labrador withdrew the opinion letter, but did not disavow its conclusions.
The attorney general appealed, contending the matter was not properly before the court because the Constitution's Eleventh Amendment did not allow him to be sued.
In the appellate ruling, all three judges rejected Labrador's reasoning.
But Fletcher and Wardlaw went farther, saying they believed a ruling was needed to bar Labrador from acting on the interpretation of the law, despite the withdrawal of the opinion letter.
"... The Attorney General withdrew the Opinion Letter and characterized it as void solely on procedural grounds," Fletcher wrote. "... But the Attorney General still has not repudiated his conclusion that (the state law) prohibits referring patients to out-of-state abortion providers. Nor has he provided an alternative interpretation of (the law) that would ease plaintiffs' fears of enforcement."
The reasoning expressed by the Ninth Circuit in the Idaho case was very similar to that expressed by federal judges in rulings striking down a controversial California law, championed by Gov. Gavin Newsom, that authorized state discipline of doctors who may express opinions when speaking with patients on Covid and other infectious diseases that differ from state-recognized "scientific consensus."
In those cases, judges all said they believed California's law similarly violated the free speech rights of doctors to express medical opinions in their professional capacity.
When those rulings were appealed to the Ninth Circuit, judges who heard oral arguments also indicated similar constitutional concerns with the California law.
However, while the appeal was pending, California repealed the law.
No decision was issued by the Ninth Circuit declaring California could not attempt to enact and enforce a similar law in the future.
Plaintiffs in the Idaho action included Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky; and physicians Caitlin Gustafson, of McCall, Idaho, and Darin Weyhrich, of Boise.
They were represented by attorneys Peter G. Neiman, Alan E. Schoenfeld, Michelle N. Diamond, Rachel E. Craft and Katherine Mackey, of Wilmer Cutler Pickering Hale and Door LLP, of New York and Boston; Jennifer R. Sandman and Catherine P. Humphreville, of Planned Parenthood; Emily M. Croston and Paul C. Southwick, of the American Civil Liberties Union of Idaho Foundation, of Boise; Andrew D. Beck, Meagan Burrows, Scarlet Kim and Ryan Mendias, of the ACLU Foundation, of Washington, D.C.; and Colleen R. Smith, of Stris & Maher LLP, of Washington, D.C.