The Board of Medicine and the Board of Nursing in Idaho have made it clear they will not investigate physicians for referring patients to out-of-state abortions. The clarification is part of a lawsuit challenging the state’s abortion ban, with Attorney General Raúl Labrador, county prosecuting attorneys, Idaho’s board of Medicine and board of Nursing named as defendants. The plaintiffs are suing because they fear health care workers will be prosecuted for referring patients to out-of-state abortion providers.
Under Idaho’s abortion ban, practitioners who perform or assist with an abortion can lose their license, face felony charges and receive up to five years in prison.
The lawsuit came after Labrador, in March 2023, wrote a letter on official stationary where he interpreted the word “assist” to include referring a patient to an abortion provider across state lines. Labrador retracted the letter shortly after but in the lawsuit’s filing in April 2023, the plaintiffs argued the AG’s interpretation violated doctors’ First Amendment rights and physicians had continued reason to fear prosecution.
Earlier this month, Judge B. Lynn Winmill upheld an injunction preventing the attorney general from prosecuting providers for out-of-state abortion referrals while the case makes its way through the courts.
Last week, the plaintiffs, Planned Parenthood and two physicians, asked for an emergency conference after they received “credible information” the Idaho Division of Occupational and Professional Licenses, or DOPL, had opened an investigation into an Idaho-licensed practitioner who had discussed with a patient “the option of accessing abortion care in another state where abortion is legal.”
In an email to the plaintiffs, counsel for the DOPL, Russell Spencer, confirmed it received a complaint from a patient upset her nurse practitioner had informed her she could get an abortion out of state.
Spencer wrote the administrative investigation into the practitioner for potential violations preceded the patient’s complaint, was unrelated to abortions and the DOPL “specifically did not open an investigation into the abortion-referral.”
The Idaho statute regulating medical licenses lays out specific cases that could lead to license loss, including “aiding or abetting the performing or procuring of an unlawful abortion” or if they are convicted of a felony. Under Idaho’s 2022 ban, the board is required to suspend a provider’s license for six months if criminally convicted of breaking the abortion law. On a second criminal conviction, the board is required to permanently revoke the license.
On Wednesday, both plaintiffs and boards filed a joint order asking Judge Winmill to dismiss the boards from the case. They also submitted a joint draft outlining the conditions for such an agreement. As a stipulation for their removal from the suit, the boards clarified they would not investigate license holders for allegedly violating Idaho’s abortion ban or referring a patient to an out-of-state abortion, absent the licensee receiving a final criminal conviction on the violation.
“Should the Boards receive a complaint that includes allegations of violations of Idaho’s abortion statutes in conjunction with any other matter, the Boards may open an investigation into the other matters identified in the complaint, but will not investigate any aspect of the complaint that relates to abortion absent legal conviction for the same,” the draft order reads.
Judge Winmill has yet to make a ruling on the joint request to dismiss the Boards from the lawsuit.