Idaho Attorney General Raúl Labrador is a very busy man. When he isn’t trying to intervene in the big abortion pill case or suing the state board of education over the proposed purchase of a for-profit university, he’s signing questionable contracts with Christian nationalists—and writing a whiny op-ed about those who dare criticize him for doing so.
Labrador, a Republican elected in 2022, has hired the right-wing Christian legal organization Alliance Defending Freedom, best known for spearheading the successful effort to overturn Roe v. Wade in 2022, to represent Idaho in federal lawsuits over an anti-trans “bathroom bill” and, now, the provision of emergency room abortions. The latter case is the result of a Biden administration lawsuit arguing that Idaho’s abortion ban violates the federal Emergency Medical Treatment and Active Labor Act, or EMTALA, which requires the provision of stabilizing care, including abortion care when necessary. The Supreme Court will hear oral argument in the case sometime this April.
This partnership raises several ethical red flags. Notably, as Chris Geidner reported in Law Dork, ADF is not charging the state for its services. James Tierney, the former attorney general of Maine and who is now a lecturer at Harvard Law School, told Geidner that a state using an advocacy organization as its lawyers is “a very bad practice,” regardless of whether the services are free. “They will represent their true client, the advocacy group, not the state,” he said. (It’s mostly futile to imagine conservative outcry if Democrats did similar things, but, as a thought exercise, the closest hypothetical to what’s going on here would be if Arizona had Planned Parenthood lawyers representing them for free in abortion litigation.)
Kristen Waggoner of the Alliance Defending Freedom speaks to reporters outside the Supreme Court, December 2022 (Kent Nishimura / Los Angeles Times via Getty Images)
But the arrangement gets even worse. The contract effectively gives ADF veto power over public statements about the case, and seeks to shield communications between the AG’s office and ADF from the state’s public records law. That latter provision was raised in a critical column from Idaho Statesman opinion writer Bryan Clark, who wrote on December 27 that the state was advancing “ADF’s political propaganda campaign” while trying to avoid public scrutiny. Similarly, Jim Jones, a Republican former attorney general and state Supreme Court justice, wrote on January 7 in the Idaho Press that “Labrador is effectively giving Idaho’s stamp of approval to this extreme-right legal behemoth.”
In response to the public commentary, Labrador wrote a predictably indignant op-ed in the Statesman on Monday, and even this non-lawyer spots gaping holes in his defense. In it, he argues, essentially, that he’s getting a good deal on seasoned lawyers, and that those critiquing him are doing so “based entirely on bias and animus.” The headline to Labrador’s op-ed even sounds like Justice Samuel Alito: “Criticizing me for hiring the ADF is unfair. Idaho citizens deserve the best defense.”
Labrador links to the Jones and Clark op-eds in his missive, but doesn’t address their substantive criticisms—that ADF is a political advocacy group exerting control over the state’s litigation via provisions about public statements and records requests. ADF “has significant experience successfully litigating complex constitutional and administrative law cases and has an impressive track record at the U.S. Supreme Court with 15 victories in the past 12 years,” Labrador writes, notably omitting that many of those victories are about religious objections to state and federal law, and the biggie, Dobbs, only happened because an octogenarian justice croaked at precisely the right time for them. Labrador adds that the “ADF regularly works with state attorneys general across the country to defend the rule of law and freedom for all Americans,” again, eliding that the “freedom” to which ADF is purportedly so devoted has resulted in letting states ban abortion and businesses refuse to serve LGBTQ people.
Labrador continues: “They have agreed to assist the state at no cost to the taxpayers. Unsurprisingly, those who criticize ADF are relying on smears from a discredited organization that critics allege has become ‘more of a partisan progressive hit operation than a civil rights watchdog,’ as Politico reported.” It’s so interesting for him to say this, since ADF fancies itself as something of a civil rights organization, yet has been outed by reporters and appellate lawyers as seeding partisan hit jobs.
It feels like a page right out of the Sam Alito Playbook for Big Boys to Prove Just How Non-ideological and Ethical They Are. Recall Alito running to the Wall Street Journal opinion section in the spring of 2023 and saying: “We are being hammered daily, and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us.” (Alito later wrote his own WSJ opinion piece to try to prebutt a ProPublica investigation about a fishing trip with conservative megadonors.)
When your critics are being quite rude actually (Photo By Bill Clark/CQ Roll Call)
People who haven’t read the Jones and Clark essays could come away thinking that Labrador is a righteous fighter, but that would be in part because Labrador ignores the biggest issues that others have raised and instead tries to paint his detractors as aggrieved whiners. It’s all reminiscent of Alito not being content with his power and loudly complaining that people are mean to him—he believes he’s entitled to the eternal respect of an infallible wizard in a robe.
Why does any of this matter? It looks increasingly likely that ADF, on behalf of its client the state of Idaho, will argue at the Supreme Court that federal law doesn’t supercede state law when it comes to abortions. The argument is that hospitals don’t have to provide abortions when women or pregnant people are experiencing a medical emergency—not until they’re in imminent danger of dying, in which case, fingers crossed doctors can save them in time. With the help of ADF, the state also advanced a legal argument for fetal personhood in a November filing, saying that “EMTALA treats an unborn child as a patient.”
While making arguments this unhinged, it sure seems like Labrador doesn’t want Idahoans or members of the press digging any further into the groups’ relationship. He’s laser focused on getting a Supreme Court victory that further oppresses people, and you’re just a whiner if you think women deserve more rights than fetuses.
