First Amendment Likely Protects Referring Patients for Out-of-State Abortions

Planned Parenthood Great Nw. v. Labrador, decided today by Judge William Fletcher, joined by Judges Kim McLane Wardlaw, blocks Idaho—which generally bans abortions—from punishing doctors who “‘refer[]‘ a patient ‘across state lines to an abortion provider’” (presumably for an abortion that is legal in the other state):

Despite ample opportunity to do so, the [Idaho] Attorney General has not contested in our court the merits of the preliminary injunction. On appeal, he has relied only on [certain] jurisdictional challenges [see the full opinion for more on those challenges -EV] …. We take the failure to object on the merits to the district court’s preliminary injunction as a concession by the Attorney General that the district court was correct in granting the injunction. But we will not permit the Attorney General, through the tactic of failing to argue the merits of his appeal of the preliminary injunction, to avoid our addressing those merits in the course of affirming the district court….

The professional medical speech at issue here is entitled to at least as much First Amendment protection as other speech. Nat’l Inst. of Fam. & Life Advocs. v. Becerra (2018) (“Speech is not unprotected merely because it is uttered by ‘professionals.’”). The exception for “regulations of professional conduct that incidentally burden speech” does not apply here. Section 18-622(1), as interpreted by the Attorney General in [an] Opinion Letter [that he had issued but then withdrew], is not merely an incidental burden. It directly prohibits medical professionals from “referring” a patient “across state lines to access abortion services.” That is, it prohibits speech that is distinct from the actual provision of treatment.

The Attorney General’s interpretation of § 18-622(1) in the Opinion Letter is 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 help a patient. See Conant v. Walters (9th Cir. 2002) (holding that a statute that imposed licensing penalties on physicians who recommended medical marijuana to patients was content-and viewpoint-discriminatory).

Because the physician plaintiffs have made out “a colorable First Amendment Claim, they have demonstrated that they likely will suffer irreparable harm” absent an injunction, and that the balance of equities and public interest tip “sharply” in their favor. We therefore affirm….

Judge Eric Miller would not have reached the merits:

I agree that the Attorney General’s jurisdictional arguments fail, so I join most of the court’s opinion…. I do not … [the discussion of] the merits. In my view, we should confine ourselves to the issues presented by the parties and refrain from opining on constitutional questions that have not been briefed and that are unnecessary to the resolution of this appeal.

Peter G. Neiman argued the case for plaintiffs.

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