Matsumoto v. Labrador, 122 F.4th 787

Background

Idaho enacted an “abortion trafficking” criminal statute, Idaho Code § 18-623, which makes it a felony for an adult to "procure an abortion" or "obtain an abortion‑inducing drug" for an unemancipated minor by "recruiting, harboring, or transporting" the minor with intent to conceal the abortion from the minor’s parent or guardian. The statute authorizes the Idaho Attorney General to prosecute if a county prosecutor "refuses to prosecute."
Plaintiffs (Idaho attorney Lourdes Matsumoto and two advocacy organizations) brought a pre‑enforcement challenge seeking to enjoin § 18-623, arguing it is void for vagueness and violates the First Amendment (speech and association) and travel rights by chilling counseling, information, financial and logistical support to minors seeking abortions (including out‑of‑state legal abortions).
The district court preliminarily enjoined enforcement of § 18-623 based on vagueness and First Amendment grounds. Idaho appealed and moved to dismiss, arguing lack of standing and that the Attorney General is not a proper defendant under Ex parte Young.
The Ninth Circuit panel held plaintiffs have standing and that the Idaho Attorney General is a proper Ex parte Young defendant, because § 18-623 grants him specific discretionary prosecution authority when county prosecutors refuse to prosecute.
On the merits the panel: affirmed in part and reversed in part — it held the statute’s "recruiting" prong is facially overbroad under the First Amendment and may be enjoined, but rejected plaintiffs’ vagueness and expressive‑association claims and upheld the harboring/transporting prongs. The recruiting clause was severed and enjoined; the case was remanded to modify the injunction.
Judge Bea concurred in part but dissented as to standing and Ex parte Young, arguing the AG cannot unilaterally prosecute absent a county prosecutor’s refusal (and no county prosecutor had refused), so the injunction against the AG does not redress plaintiffs’ injuries.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing (pre‑enforcement credible threat)	Plaintiffs assert a credible threat because they intend to counsel and assist minors and § 18-623 criminalizes that conduct; AG has not disavowed enforcement.	Labrador contends plaintiffs sued the wrong defendant and cannot show a realistic threat from the AG.	Court: Plaintiffs have standing; threat is credible given statutory enforcement scheme, AG opinion, and lack of disavowal.
Ex parte Young / sovereign immunity	Plaintiffs sued AG to enjoin future state enforcement.	AG argued Eleventh Amendment bars suit because he lacks the requisite enforcement connection.	Court: AG is a proper defendant—§ 18-623 gives him specific discretionary enforcement authority, meeting Ex parte Young’s "some connection" test.
Void for vagueness	Plaintiffs: statute is vague and chills speech.	Idaho: statutory terms have ordinary meanings and provide fair notice.	Court: Plaintiffs unlikely to succeed on vagueness; statute gives sufficiently clear standards as applied.
First Amendment — "recruiting" (facial overbreadth)	"Recruiting" sweeps in protected speech (counseling, persuasion, information, legal advice, fundraising, logistical/financial assistance) and chills expression to minors.	Idaho: recruiting targets non‑expressive acts integral to trafficking; statute aims to protect minors.	Court: "Recruiting" is facially overbroad because it criminalizes a substantial amount of protected speech relative to legitimate sweep; likely to succeed on First Amendment claim as to recruiting.
First Amendment — "harboring" and "transporting"	Plaintiffs argued statute also chills conduct with expressive elements.	Idaho: harboring/transporting are non‑expressive, core enforcement targets.	Court: Plaintiffs unlikely to succeed on speech challenge to harboring/transporting; those prongs are non‑expressive on their face.
Severability	Plaintiffs sought to invalidate whole statute.	Idaho argued recruiting is integral and statute must fall as a whole.	Court: "Recruiting" prong severable; remaining harboring/transporting provisions survive and can be enforced.

Key Cases Cited

Ex parte Young, 209 U.S. 123 (1908) (permits prospective injunctive relief against state officers for federal‑law violations)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requirements: injury, causation, redressability)
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre‑enforcement credible threat standard for injury‑in‑fact)
Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) (returned abortion regulation to states)
United States v. Hansen, 599 U.S. 762 (2023) (overbreadth/First Amendment facial‑challenge standards discussed)
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (pre‑enforcement context and credible threat analysis)
McCullen v. Coakley, 573 U.S. 464 (2014) (sidewalk counseling is protected speech)
Bigelow v. Virginia, 421 U.S. 809 (1975) (commercial speech about lawful out‑of‑state abortion is protected)
United States v. Williams, 553 U.S. 285 (2008) (facial‑challenge framework and limits on vagueness requirements)
Planned Parenthood of Idaho v. Wasden, 376 F.3d 908 (9th Cir. 2004) (Ex parte Young connection requirement and Idaho enforcement context)