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OPINION: Will Labrador stand up for his anti-abortion supporters?

by JIM JONES/Guest Opinion
| April 3, 2024 1:00 AM

April 24 could be a critical turning point in Raul Labrador's tenure as Idaho Attorney General — an opportunity to shine on the national stage. That is the day scheduled for oral argument in the U.S. Supreme Court (SCOTUS) on Idaho’s restrictive abortion laws, which criminalize emergency abortion care unless “necessary to prevent the death of the pregnant woman.” 

Labrador wants the Court to rule that the Idaho law takes precedence over a federal statute requiring hospital emergency room physicians to provide “necessary stabilizing treatment” when an ER patient’s health is in danger. That includes emergency abortion services for dangerous pregnancy conditions.

Labrador has been subject to criticism, including from me, for the way he has politicized the office. If he decides to personally argue this case and makes a competent and convincing case to the high court, it could certainly put him in a more favorable light.

One of the rare privileges of being a state attorney general is to have the once-in-a-lifetime opportunity to argue before the Supreme Court. Only the faint-hearted or unqualified would turn it down. I had three such opportunities during my service as Attorney General and consider them to be the high point of my legal career.

More than a personal achievement, a masterful argument by a state attorney general can add some heft to the state’s side of the case. I expect that the Court will be closely divided on this case and a competent argument could tip the balance to Labrador.

The case has drawn a great deal of interest across the country and it will be closely watched. Dozens of friend-of-the-court briefs have been filed in support of both sides of the case. I believe that 24 other state attorneys general, who oppose Labrador’s position, have stated a much better case. They correctly contend that “when a decision needs to be made in an emergency medical situation, that decision should be made by the patient, not dictated by the government.”

Even though I disagree with his position, Labrador owes it to his supporters to step forward and personally argue the case to the Justices. He has made this a signature issue, milking his opposition to the federal law for all it is worth. 

Many of his claims are flat wrong, including that the federal law forces ER doctors to perform abortions and that Idaho’s law protects the lives of women. A number of Idaho women who developed dangerous pregnancy conditions strongly disagree and have sued the state over those abortion restrictions, claiming it is “unsafe to be pregnant in Idaho.”

Recognizing problems with the severe restrictions of Idaho abortion laws, several legislators promised to address the issue this year. Rep. Brent Crane said last year that legislators would “do more work to define what constitutes a risk to a mother’s life” this year. He also said, “It has to be fixed.” The 2024 legislative session did not see any real effort to address the issue, leaving women with pregnancy complications in a dangerous limbo. A credible source reports that key legislators were asked to hold off action to fix the law until after the April 24 SCOTUS hearing.

It is hard to understand what a delay in fixing Idaho’s restrictive law would have to do with the April hearing, unless it was based on an unfounded fear that a fix might undercut the state’s case or might, at minimum, detract from Labrador’s build-up of the case as a clash of titans.

Regardless of the politics behind the case, Mr. Labrador has the right to choose who will make the SCOTUS argument for his part of the case (the Idaho Legislature will be represented by other attorneys in a companion case — a clear case of costly double teaming). 

He can personally argue the case, which would give him the chance to strut his stuff and prove his worth. Or he could palm off the job to someone else who would not have the authority of his elected office. I doubt that he’ll put himself under the gun.

• • •

Jim Jones is a Vietnam combat veteran who served eight years as Idaho Attorney General (1983-1991) and 12 years as a Justice on the Idaho Supreme Court (2005-2017). His columns are collected at JJCommonTater.com.


LINKS:

Necessary to prevent the death:

https://legislature.idaho.gov/statutesrules/idstat/Title18/T18CH6/SECT18-622/.


Federal statute:

https://www.npr.org/2024/01/05/1216284896/supreme-court-allows-idaho-abortion-ban-to-be-enacted-first-such-ruling-since-do#


Dozens of friend-of-the-court briefs have been filed:

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-726.html


They correctly contend:

https://www.doj.state.wi.us/news-releases/attorney-general-kaul-joins-coalition-taking-action-against-idaho%E2%80%99s-draconian-abortion#


Many of his claims are flat wrong:

https://www.ag.idaho.gov/newsroom/attorney-general-labrador-takes-biden-administration-to-supreme-court-to-protect-life/#


Unsafe to be pregnant in Idaho:

https://www.idahostatesman.com/news/politics-government/state-politics/article279248484.html


Representative Brent Crane said:

https://www.lmtribune.com/opinion/opinion-lawmakers-failed-at-one-job-they-had-to-do/article_2245d126-4bb7-5b03-982b-003b0c049484.html/


It has to be dealt with:

https://idahocapitalsun.com/2023/11/07/most-americans-want-health-exceptions-in-abortion-bans-political-infighting-keeps-blocking-them/