Can the Idaho Attorney General prosecute someone for performing a criminal abortion under § 18-622, or does only the county prosecutor have that power?

Plain-English summary

Idaho Attorney General Raul Labrador concluded that his office cannot, on its own, bring criminal charges against a doctor or anyone else for violating Idaho's criminal abortion statute, § 18-622. Prosecutorial authority in Idaho rests with the elected county prosecuting attorney for the county where the alleged crime occurred. The AG can prosecute only when the Legislature specifically gives him that power for a particular crime, or when a county prosecutor formally asks the AG for help and a district court appoints the AG under § 31-2603.

This was a notable opinion because it was issued shortly after Idaho enacted its post-Dobbs abortion law and sharply limited the AG's role in enforcing § 18-622. Representative Bruce Skaug had asked whether the AG could pursue providers directly. The answer was no.

The AG also addressed a related companion law, § 18-623, which the 2023 Legislature passed to take effect May 5, 2023. Under § 18-623(4), the AG can prosecute § 18-623 violations only if "the prosecuting attorney refuses to prosecute." The Legislature considered including that fallback for § 18-622 in the original H.B. 242 draft, but stripped it out before passage. So § 18-622 is back to the default rule: county prosecutor only.

What this means for you

If you are a county prosecutor in Idaho

You are the only official with authority to bring a § 18-622 case. The AG cannot file the charge, take the case from you, or pressure a district court into letting him appear without your request. If you want the AG's office involved, two paths exist under § 31-2603:

• § 31-2603(a): If you cannot perform your duties (recusal, conflict, capacity), move the district court to appoint the AG as special prosecutor with all your powers.
• § 31-2603(b): If you want the AG's resources but want to retain control, seek appointment of a special assistant Attorney General to prosecute or assist.

The opinion is explicit that the AG has no separate "referral" power, only a request-and-appointment power. If the AG sends you a packet of evidence and asks you to charge, you treat it the same as a complaint from any private citizen: you exercise your own discretion.

If you are a doctor, clinic, or attorney advising abortion providers

The opinion narrows who can bring criminal charges against you under § 18-622. You face exposure only from your county's prosecuting attorney (or, by appointment, the AG acting at that prosecutor's request). The AG cannot unilaterally bring charges. That is a meaningful structural protection if your county prosecutor declines to enforce § 18-622, because the AG cannot end-run the local decision the way some other states' AGs can.

Note that this protection does not extend to § 18-623, where the AG has standby authority if the local prosecutor refuses to prosecute. And it does not address civil liability, federal Comstock-style theories, or licensing actions.

If you are a state legislator or staffer

If you want the AG to have independent prosecutorial authority over a particular crime, you must say so explicitly in statute. The Idaho Supreme Court has read the AG's powers narrowly since 1998, when the Legislature stripped the AG's general supervisory authority over county prosecutors. Drafting tip: the H.B. 242 history matters. The original bill gave the AG discretion to prosecute § 18-622, that language was removed in amendment, and the AG correctly reads silence as denial of authority.

If you are a journalist covering Idaho abortion enforcement

The opinion is a structural map of who can bring a § 18-622 case. When reporting on a charging decision, identify the elected county prosecutor as the decision-maker, not the AG. If the AG appears, look for the district-court appointment order under § 31-2603: that is the document that authorizes him.

Common questions

Q: Can the AG investigate a § 18-622 violation even if he cannot prosecute?
A: The opinion does not directly address investigation. It addresses the power to bring the criminal case. As a practical matter, the AG can apprise a county prosecutor of facts, just like any citizen. Whether the AG can use grand jury, subpoena, or other investigative tools without a charge depends on separate statutes and is outside the scope of this opinion.

Q: What is § 31-2603 and why does it keep coming up?
A: It is the statute that lets a county prosecutor formally hand off a case to the AG. Subsection (a) is the full transfer ("special prosecutor with all the powers of the prosecuting attorney"). Subsection (b) is the assist ("special assistant Attorney General"). Both require a district court order. Without that order, the AG has no role.

Q: Does the Governor have a workaround?
A: No. The opinion notes that even the Governor's authority under § 67-802(7) is limited to "requir[ing] the attorney general to aid any prosecuting attorney." The Governor cannot order the AG to take over a county case.

Q: What about Planned Parenthood v. Wasden, where the Ninth Circuit said the AG could be sued under Ex parte Young because he had enforcement authority?
A: The opinion addresses this directly in footnote 2: a federal court's sovereign-immunity ruling cannot create state-law powers that do not exist under operative Idaho law. So Wasden is irrelevant to this question.

Q: Does this mean § 18-622 is unenforceable in counties whose prosecutor refuses to bring cases?
A: Effectively, yes, unless that prosecutor is replaced or the Legislature amends § 18-622 to add an AG fallback (the way it did for § 18-623). The opinion does not say so explicitly, but it is the practical implication.

Background and statutory framework

Idaho separates the AG's role from the county prosecutor's role by statute and constitutional practice. The AG is "Idaho's chief legal officer," not its "chief law enforcement officer" (Newman v. Lance, 129 Idaho 98, 102 (1996)). The Legislature has declared in § 31-2227 that "the primary duty of enforcing all the penal provisions of any and all statutes of this state, in any court, is vested in the sheriff and prosecuting attorney of each of the several counties."

Before 1998, the AG had broader supervisory power over county prosecutors. The 1998 Legislature deleted that supervisory authority, and the Idaho Supreme Court in State v. Summer (139 Idaho 219, 224 (2003)) recognized that the deletion "apparently reduc[ed] the authority of the Attorney General in relation to county prosecuting attorneys." Even before 1998, Newman had already held that, absent a statutory grant, the AG's authority to step into a criminal case is purely derivative and triggered only by a § 31-2603 appointment.

§ 18-622 is Idaho's main criminal abortion statute (the "trigger" law that took effect after Dobbs). § 18-623 (the affirmative-defense framework added in 2023) is a separate law and has its own AG-fallback clause. The opinion's narrow holding is that the latter's AG-fallback structure cannot be read into the former.

Citations and references

Statutes:
- Idaho Code § 18-622 (criminal abortion)
- Idaho Code § 18-623 (affirmative defense framework, 2023 H.B. 242)
- Idaho Code § 31-2002 (AG prosecutorial authority over county officials acting in their official capacity)
- Idaho Code § 31-2227 (county prosecutor primacy in penal enforcement)
- Idaho Code § 31-2603 (special prosecutor / special assistant AG appointment)
- Idaho Code § 31-2604 (county prosecutor's plenary authority)
- Idaho Code § 67-802 (Governor's authority over the AG)
- Idaho Code § 67-1401 (AG's duties)

Cases:
- Newman v. Lance, 129 Idaho 98, 922 P.2d 395 (1996), AG cannot assume control of a criminal case absent county prosecutor's request
- State v. Summer, 139 Idaho 219, 76 P.3d 963 (2003), confirms reduction of AG authority after 1998 amendment
- Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir. 2004), federal sovereign-immunity ruling does not create state-law prosecutorial authority

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://www.ag.idaho.gov/content/uploads/2023/04/23-86095-Response-OPN-23-1.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

RAUL R. LABRADOR

ATTORNEY GENERAL OPINION NO. 23-1

TO:

The Honorable Bruce Skaug
Idaho House of Representatives
P.O. Box 83720
Boise, Idaho 83720-0038

You have requested an opinion from the Attorney General on the Attorney General's authority to prosecute violations of Idaho Code § 18-622. Your request raises important questions of Idaho law in the public interest and therefore this opinion is published as an official opinion of the Idaho Office of the Attorney General.

QUESTION PRESENTED

What authority does the Idaho Attorney General have to bring prosecutions for criminal abortion under Idaho Code § 18-622?

ANSWER

The Idaho Attorney General's criminal prosecutorial authority exists only where specifically conferred by statute or upon referral or request by county prosecutors. The Legislature has not granted the Attorney General any authority to prosecute violations of Idaho Code § 18-622. Thus, the Idaho Attorney General may bring or assist in a prosecution under Idaho Code § 18-622 only if specifically requested by a county prosecutor pursuant to an appointment made by a district court under Idaho Code § 31-2603.

ANALYSIS

The Attorney General is Idaho's "chief legal officer," but not its chief law enforcement officer. Newman v. Lance, 129 Idaho 98, 102, 922 P.2d 395, 399 (1996). Rather, Idaho Code dictates that it is "the policy of the state of Idaho that the primary duty of enforcing all the penal provisions of any and all statutes of this state, in any court, is vested in the sheriff and prosecuting attorney of each of the several counties." Idaho Code § 31-2227. Those elected county prosecutors have plenary criminal enforcement authority to prosecute crimes that occur in their respective jurisdictions and do not answer to the Attorney General. Idaho Code § 31-2604. In fact, while Idaho law previously allowed the Attorney General to "exercise supervisory powers over prosecuting attorneys in all matters pertaining to their duties," Newman, 129 Idaho at 102, 922 P.2d at 399, the Legislature struck that provision in 1998, limiting the Attorney General's criminal enforcement authority to the ability to "assist the prosecuting attorney" in each respective county. State v. Summer, 139 Idaho 219, 224, 76 P.3d 963, 968 (2003). Even the Governor's authority in the matter is limited to "requir[ing] the attorney general to aid any prosecuting attorney in the discharge of his duties." Idaho Code § 67-802(7). The Governor may not require the Attorney General to assume those duties himself.

The Attorney General's ability to prosecute criminal cases as referrals from county prosecutors comes in two forms. First, when a county prosecutor cannot perform his or her duties, the county prosecutor may refer a case to the Attorney General and move for a court order appointing him as special prosecutor to assume "all the powers of the prosecuting attorney." Idaho Code § 31-2603(a). Second, a county prosecutor who wants to utilize the resources of the Attorney General's Office may seek the appointment of a special assistant Attorney General to prosecute or assist in prosecuting a criminal case. Idaho Code § 31-2603(b). Thus, under Idaho law, the Attorney General has prosecutorial authority only if specifically conferred by the Legislature or if requested by county prosecutors and approved by a state district judge.

I. The Legislature Has Not Given the Attorney General Independent Authority to Prosecute Violations of Idaho Code § 18-622.

The Legislature has conferred prosecutorial authority on the Attorney General to prosecute specific crimes in specific circumstances. For example, the Legislature has granted the Attorney General authority to prosecute violations of criminal law by county elected officials acting in their official capacity. Idaho Code § 31-2002. In addition, the Legislature recently enacted a new law to take effect May 5, 2023 that would give the Attorney General discretion to prosecute violations of Idaho Code § 18-623, but only "if the prosecuting attorney ... refuses to prosecute violations." H.B. 242, § 18-623(4). The Legislature has not granted the Attorney General any such authority to prosecute violations of Idaho Code § 18-622. Thus, the Attorney General has no power to bring independent prosecutions under that statute.

II. The Attorney General May Prosecute Violations of Idaho Code § 18-622 Only Upon Request by a County Prosecutor.

In the absence of a specific grant of prosecutorial authority, the Attorney General has that power only where his assistance is requested by a county prosecutor. That power is set forth in Idaho statutory law, which gives the Attorney General the "duty," "[w]hen required by the public service, to repair to any county in the state and assist the prosecuting attorney thereof in the discharge of duties." Idaho Code § 67-1401(7). As construed by the Idaho Supreme Court, the Attorney General's authority under this statute is entirely derivative: it exists only if the county prosecutor specifically requests the assistance of the Attorney General via an appointment by the district court under Idaho Code § 31-2603.

The Idaho Supreme Court construed these principles in Newman, where it rejected the Attorney General's attempt "to appear in a criminal case and assume control and direction of the case on behalf of the state." 129 Idaho at 99, 922 P.2d at 396. At the time the Newman case was decided, Idaho statutory law still gave the Attorney General supervisory authority over county prosecutors. See id. Nevertheless, the Idaho Supreme Court relied on the fact that "[t]he legislature has made it the primary obligation of the Prosecutor to enforce the state penal laws" by making it "the policy of the state of Idaho that the primary duty of enforcing all the penal provisions of any and all statutes of this state, in any court, is vested in the sheriff and prosecuting attorney of each of the several counties." 129 Idaho at 103, 922 P.2d at 400. Thus, the Idaho Supreme Court granted a writ "prohibiting the Attorney General from asserting dominion and control over the cases" absent a request by the county prosecutor. 129 Idaho at 104, 922 P.2d at 401.

The Idaho Supreme Court further explained these principles in Summer. There, the Court observed that "in 1998 the Legislature deleted the provision allowing the Attorney General to exercise supervisory powers over prosecuting attorneys," which it said "apparently reduc[ed] the authority of the Attorney General in relation to county prosecuting attorneys." 139 Idaho at 224, 76 P.3d at 968. And, in any event, "[e]ven prior to the 1998 amendment ... , Newman made it clear that the prosecuting attorney has primary responsibility for the enforcement of state penal laws." See id. The Idaho Supreme Court thus reaffirmed that, absent a specific statutory grant of prosecutorial authority, the Attorney General has independent authority to prosecute only upon motion by the county prosecuting attorney under Idaho Code § 31-2603.

Finally, the foregoing limitations on the Attorney General's authority also mean he has no separate referral power. While county prosecutors have statutory power to refer a matter to the Attorney General for prosecution by requesting his assistance and appointment by the district court, see Idaho Code §§ 67-1401(7), 31-2603, Idaho law does not grant a reciprocal right to the Attorney General to refer a matter to county prosecutors. In those circumstances, the Attorney General stands in the same shoes as any citizen: he has the right to apprise a county prosecutor of facts that they believe constitute a prosecutable crime that the prosecutor may or may not decide to pursue. So whether it is the Attorney General or any other private citizen who apprises the prosecutor of those matters, it remains within the county prosecutor's discretion to bring charges absent an express referral to the Attorney General and an appointment by the district court. Idaho Code § 31-2603.

CONCLUSION

For the reasons above, I conclude that the Idaho Attorney General may not bring or assist in a prosecution under Idaho Code § 18-622 unless a county prosecutor specifically so requests and an appointment is made by the district court under Idaho Code § 31-2603.

AUTHORITIES CONSIDERED

1. Idaho Code:
   - H.B. 242, 2023 Legislative Session
   - Idaho Code § 18-622
   - Idaho Code § 18-623
   - Idaho Code § 31-2002
   - Idaho Code § 31-2227
   - Idaho Code § 31-2603
   - Idaho Code § 31-2604
   - Idaho Code § 67-802
   - Idaho Code § 67-1401

2. Idaho Cases:
   - Newman v. Lance, 129 Idaho 98, 922 P.2d 395 (1996)
   - Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir. 2004)
   - State v. Summer, 139 Idaho 219, 76 P.3d 963 (2003)

Dated this 27th day of April, 2023.

RAUL R. LABRADOR
Attorney General

Analysis by:
JEFF NYE
Deputy Attorney General