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Idaho attorney general's legal opinion on abortion may violate First Amendment

Idaho's attorney general says doctors who refer patients out of state for an abortion should have their license suspended, but that may violate the First Amendment.
Credit: AP
FILE - Idaho Attorney General candidate Rep. Raul Labrador delivers his acceptance speech during the Idaho Republican Party 2022 General Election Night Celebration in Boise, Idaho, Tuesday, Nov. 8, 2022. Idaho will add a new position of solicitor general to challenge federal government actions and policies when Labrador becomes the state's new attorney general in early January. Labrador on Thursday, Nov. 17, 2022, announced two staff positions to be filled by former members of President Donald Trump's administration. (AP Photo/Kyle Green, File)

BOISE, Idaho — This article originally appeared in the Idaho Press.

Around 50 years ago, abortion was illegal in most states. Virginia, which outlawed abortions, had a law on the books banning people from encouraging abortion. Jeffery Bigelow, the editor of a Virginia newspaper, was arrested after his newspaper ran an ad for an abortion referral service in New York.

The Supreme Court ruled the law unconstitutional and reversed Bigelow’s conviction. Some advertisements, including those for abortion services, are protected by the First Amendment, according to the American Civil Liberties Union.

A similar legal question is playing out in Idaho after Attorney General Raúl Labrador wrote a legal opinion saying that a doctor who refers a woman across state lines to get an abortion would have their license suspended.

A regional Planned Parenthood sued Labrador over this legal opinion. Labrador’s office said it won’t comment on pending litigation.

But what are the First Amendment issues at hand? The Idaho Press spoke to an expert with the the Foundation for Individual Rights and Expression (FIRE) to find out.

Joe Cohn, the legislative and policy director for FIRE, said there is no abortion-related exception to the First Amendment.

“Even if the state can prohibit abortions within its borders, it can’t prohibit people from talking about options where it’s lawful elsewhere,” Cohn said. “You can’t have borders on where you’re allowed to have information.”

The government can only restrict expression under very narrow circumstances, Cohn said. Content- and viewpoint-based restrictions are under the court’s highest level of scrutiny, known as strict scrutiny.

That means the government would have to have a compelling interest and use the least restrictive means possible.

“The attorney general’s actions here will never satisfy that degree of scrutiny,” Cohn said. “It doesn’t matter whether they want to or not, they do not have the right to restrict whether or not people can get information about what’s lawful elsewhere.”

Labrador also wrote that a doctor who prescribes an Idaho patient abortion pills to be picked up in another state would incur the same punishment of license suspension, though the lawsuit described this part as related to the dormant commerce clause and due process.

“The commerce clause of the United States Constitution prohibits a state from applying its laws extraterritorially to regulate out-of-state activity which is lawful where it occurs,” the lawsuit said.

In recent months, Idaho has been grappling with free speech concerns around abortion.

The University of Idaho sent an email to employees in September, advising them to limit classroom discussions of abortion and to avoid promoting abortion. The memo, sent by general counsel, referenced the No Public Funds for Abortion Act, which the Idaho Legislature passed in 2021.

Boise State University had sent a link to faculty and staff with FAQs about the act. The FAQs said that curriculum and training could not include promoting abortion.

At the time, Foundation for Individual Rights and Expression Attorney Adam Steinbaugh said pro-life faculty members would be affected as well because they can’t remain neutral and criticize abortion.

“This memo flies in the face of that First Amendment freedom,” Steinbaugh said at the time. “(Academic freedom) is the central plank of the university experience.”

In January, Rep. Bruce Skaug, R-Nampa, introduced legislation to clarify that the No Public Funds for Abortion Act was not meant to prevent discussions in university classrooms.

Efforts to reach Skaug were unsuccessful.

This article originally appeared in the Idaho Press, read more on IdahoPress.com.

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