LOURDES MATSUMOTO; NORTHWEST ABORTION ACCESS FUND; INDIGENOUS IDAHO ALLIANCE v. RAUL LABRADOR, in his capacity as the Attorney General for the State of Idaho
No. 23-3787
United States Court of Appeals for the Ninth Circuit
December 2, 2024
D.C. No. 1:23-cv-00323-DKG
FOR PUBLICATION
Debora K. Grasham, Magistrate Judge, Presiding
Argued and Submitted May 7, 2024 Seattle, Washington
Filed December 2, 2024
Before: M. Margaret McKeown, Carlos T. Bea, and John B. Owens, Circuit Judges.
Opinion by Judge McKeown; Partial Concurrence and Partial Dissent by Judge Bea
SUMMARY*
First Amendment/Abortion
The panel affirmed in part and reversed in part the district court‘s order preliminarily enjoining Idaho‘s abortion trafficking statute,
Section 18-623 defines the crime of “abortion trafficking” as procuring an abortion or obtaining an abortion-inducing drug for an unemancipated minor by “recruiting, harboring, or transporting” a pregnant minor with the intent to conceal the abortion from the minor‘s parents or guardian.
The panel held that Idaho attorney Lourdes Matsumoto and two advocacy organizations (collectively “Challengers“), who seek to counsel pregnant minors in Idaho and provide material support to access legal abortions in other states, had standing to bring a pre-enforcement challenge to the statute because they reasonably asserted that the course of conduct they wished to engage in would put them at credible risk of prosecution under Section 18-623.
The panel held that the Idaho attorney general is a proper defendant under the Ex parte Young, 209 U.S. 123 (1909) exception to Eleventh Amendment sovereign immunity because the attorney general‘s authority to prosecute abortion trafficking derives from a specific grant of authority in Section 18-623, not a general provision of authority to enforce state laws. Section 18-623 grants the Idaho attorney general the authority, at the attorney general‘s sole discretion, to prosecute a person for a criminal violation of this section if the prosecuting attorney authorized to prosecute criminal violations of this section refuses to do so.
Turning to the merits of the district court‘s grant of the injunction, the panel held that Challengers are unlikely to succeed on the merits of their claim that Section 18-623 is void for vagueness аnd facially burdens their rights to expressive association. Challengers are also unlikely to prevail on the merits of their facial First Amendment claim that the statute‘s prohibition on “harboring” and “transporting” infringes on their First Amendment speech rights because the conduct covered by “harboring” and “transporting” is not expressive on its face.
The panel held that Challengers are likely to succeed on the merits of their facial First Amendment claim that the Section 18-623‘s “recruiting” prong unconstitutionally infringed on their protected speech. The provision is unconstitutionally overbroad because it prohibits a substantial amount of protected expressive speech relative to its plainly legitimate sweep. However, the “recruiting” prong can be severed from the rest of the statutory provisions because it is neither integral nor indispensable to the operation of the statute as the Idaho legislature intended.
Accordingly, the panel affirmed the district court‘s order preliminarily enjoining the Idaho attorney general from enforcing the “recruiting” prong of Section 18-623. Because Challengers are unlikely to succeed on the merits of their remaining claims, the panel reversed the district court with respect to those claims and remanded to the district court to modify the preliminary injunction.
Concurring in the judgment in part and dissenting in part, Judge Bea wrote that plaintiffs have not established Article III standing because plaintiffs sued only the Idaho Attorney General, who does not and cannot enforce Section 18-623—only 44 county prosecutors can. The Idaho Attorney General can enforce the statute only if one or more of the county prosecutors refuses to do so, but none has. Plaintiffs’ injuries are not traceable to the attorney general, and, for the same reasons, the injunction issued by the district court does not redress their alleged injuries. Judge Bea would reverse the district court in full and remand with instructions to dismiss the case for lack of subject matter jurisdiction.
COUNSEL
Wendy J. Olson (argued), Stoel Rives LLP, Boise, Idaho; Kelly O‘Neill, Legal Voice, Boise, Idaho; Wendy S. Heipt, Legal Voice, Seattle, Washington; Jamila A. Johnson, The Lawyering Project, New Orleans, Louisiana; Paige Suelzle, The Lawyering Project, Burien, Washington; for Plaintiffs-Appellees.
Joshua N. Turner (argued), Acting Solicitor General; Michael A. Zarian, Deputy Solicitor General; Alan M. Hurst, Solicitor General; Aaron M. Green, Deputy Attorney General; James E.M. Craig, Chief, Civil Litigation and Constitutional Defense; Raul R. Labrador, Idaho Attorney General; Idaho Office of the Attorney General, Boise, Idaho; for Defendant-Appellant.
Jonah Horwitz, Assistant Federal Public Defender, Federal Defenders of Idaho, Capital Habeas Unit, Boise, Idaho; Sarah Tompkins, Boise, Idaho; for Amici Curiae the Idaho Association of Criminal Defense Attorneys.
Colleen R. Smith, Stris & Maher LLP, Washington, D.C.; Chelsea Gonzales, Advocates for Youth, Washington, D.C.; Alanna Peterson, National Network of Abortion Funds, Beaverton, Oregon; Alexander M. Wolf and Drew M. Padley, Steptoe LLP, Houston, Texas; Jessica S. Goldberg, If/ When/ How: Lawyering for Reproductive Justice, Oakland, California; for Amici Curiae Advocates for Youth, If/ When/ How: Lawyering for Reproductive Justice, and National Network of Abortion Funds.
Sarah E. Smith-Levy, Assistant Attorney General; Emma Grunberg and Cristina Sepe, Deputy Solicitors General; Robert W. Ferguson, Washington Attorney General; Office of the Washington Attorney General, Olympia, Washington; Kris Mayes, Arizona Attorney General, Office of the Arizona Attorney General, Phoenix, Arizona; Rob Bonta, California Attorney General, Office of the California Attorney General, Oakland, California; Philip J. Weiser, Colorado Attorney General. Office of the Colorado Attorney General, Colorado Department of Law, Denver, Colorado; William Tong, Connecticut Attorney General, Office of the Connecticut Attorney General, Hartford, Connecticut; Kathleen Jennings, Delaware Attorney General, Office of the Delaware Attorney General, Wilmington, Delaware; Anne E. Lopez, Hawaii Attorney General, Office of the Hаwaii
Shahily Negron, The Law Firm of Shahily Negron, Reading, Pennsylvania; Jonathan Wallace, Amagansett, New York; for Amici Curiae Gina Whitney, Shahily Negron, Jonathan Wallace, and The Parachute Project.
OPINION
McKEOWN, Circuit Judge:
In Dobbs v. Jackson Women‘s Health Organization, 597 U.S. 215, 232 (2022), the Supreme Court “return[ed]” the authority to regulate or prohibit abortion to the “people and their elected representatives.” Idaho has heeded this invitation with gusto. With the laboratory of democracy in high gear, litigation has followed. Case after case challenging nеarly every aspect of Idaho‘s post-Dobbs regime has made its way up to this court—and beyond.1
This case concerns a unique legislative undertaking: an “abortion trafficking” statute.
Idaho attorney Lourdes Matsumoto and two advocacy organizations, Northwest Abortion Access Fund and the Indigenous Idaho Alliance (collectively “Challengers“), seek to counsel pregnant minors in Idaho and provide material support to access legal abortion in other states. They moved to enjoin Section 18-623, arguing that the abortion trafficking statute violates the First Amendment and is void for vagueness. The district court granted the injunction on both grounds. As a threshold matter, we conclude that Challengers have standing and that the Idaho attorney general is a proper defendant under Ex parte Young, 209 U.S. 123 (1909). We affirm the injunction in part because the statute‘s provision on “recruiting” violates the First Amendment by prohibiting “a substantial amount of protected speech relative to its plainly legitimate sweep.” United States v. Hansen, 599 U.S. 762, 770 (2023) (internal marks and citation omitted). However, we reverse the district court insofar as the “recruiting” provision is severable from the other statutory provisions, including the prohibition of “harboring and transporting,” which do not violate Challengers’ First Amendment rights. We also conclude that the statute is neither void for vagueness nor facially in violation of the First Amendment rights of association. Thus, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.3
Background
Idaho Code Section 18-623 was introduced in February 2023 as House Bill 242. See
Idaho Code Section 18-623 criminalizes “abortion trafficking,” defined as “[a]n adult who, with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion, . . . or obtains an abortion-inducing drug . . . by recruiting, harboring, or transporting the pregnant minor within” the state of Idaho.
On July 11, 2023, Challengers brought this action against Idaho Attorney General Raúl Labrador (“Idaho“). They assert that they have provided guidance and material support to minors inside and outside of Idaho to access legal abortion care in the past and want to continue to do so. They contend that Idaho Code Section 18-623 is void for vagueness under the Fourteenth Amendment, infringes on their First Amendment rights to speak and associate, and infringes on their rights to inter- and intrastate travel.
In the district court, Challengers sought to enjoin the law based only upon void-for-vagueness and First Amendment claims. Idaho responded by moving to dismiss, arguing that the attorney general is an improper defendant under Ex parte Young; that Challengers lack standing; and that each of the claims fails as a matter of law. The district court granted the preliminary injunction, concluding that the attorney general was a proper defendant under Ex parte Young and that Challengers had sufficiently demonstrated both standing to sue and a likelihood of success on the merits of their First Amendment and void-for-vagueness claims. The court also granted in part and denied in part Idaho‘s motion to dismiss, dismissing only the claim that Section 18-623 violated the right to intrastate travel, allowing all other claims to continue. Idaho promptly appealed both rulings.6
We first address de novo two threshold issues: whether Challengers have standing to sue to enjoin Section 18-623; and whether the Idaho attorney general is a proper defendant under the Ex parte Young exception to sovereign immunity. See, e.g., Save Bull Trout v. Williams, 51 F.4th 1101, 1105–06 (9th Cir. 2022) (standing); Walden v. Nevada, 945 F.3d 1088, 1092 (9th Cir. 2019) (sovereign immunity).
I. Standing
To establish “the irreducible constitutional minimum of standing,” Challengers must demonstrate: (1) that they have suffered an injury-in-fact, (2) that their injury is fairly traceable to a defendant‘s conduct, and (3) that their injury would likely be redressed by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
A. Injury-in-Fact
In a pre-enforcement challenge, a litigant “satisfies the injury-in-fact requirement [by alleging] ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.‘” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. 289, 298 (1979)). Importantly, a challenger need not “confess that he will in fact violate that law.” Id. at 163. Rather, such a plaintiff need only express “the intention to engage in the proscribed conduct, were it not proscribed.” Peace Ranch, LLC v. Bonta, 93 F.4th 482, 488 (9th Cir. 2024).
In asserting their First Amendment rights, Challengers claim that, in arguable violation of the statute, they have provided guidance and material support to minors in Idaho to access legal abortion care and intend to do so in the future. Their declarations stated that they “have been willing to help pregnant minors obtain reproductive options counseling and healthcare, including abortion, without the consent of the minors’ parents,” and noted that “[t]he parents and guardians of the minors to whom we provide information about abortion may or may not be aware of, or consent to, the provision of information regarding abortions.” Idaho has never signaled that such conduct does not violate the statute, and in the district court, it asserted that such a “pattern” of “purposely not informing the parents” could contribute to a finding of intentional concealment under Section 18-623. In view of these allegations, Challengers are “presently or prospectively subject” to Section 18-623. Laird v. Tatum, 408 U.S. 1, 11 (1972).
This statute is of recent vintage—less than six months old. In challenging a new law whose history of enforcement is negligible or nonexistent, either a “general warning of enforcement” or a “failure to disavow enforcement” is sufficient to establish a credible threat of prosecution in pre-enforcement challenges on First Amendment grounds. Tingley v. Ferguson, 47 F.4th 1055, 1068 (9th Cir. 2022) (emphasis in original); see also Holder v. Humanitarian L. Project, 561 U.S. 1, 16 (2010) (“The Government has not argued to this Court that plaintiffs will not be prosecuted if they do what they say they wish to do.“); Isaacson v. Mayes, 84 F.4th 1089, 1100–01 (9th Cir. 2023) (finding a credible threat of enfоrcement even where the Arizona attorney general expressly disavowed enforcement).
As the district court found, “Idaho Code Section 18-623 causes Plaintiffs to self-censor their speech and expressive activities due to fear of prosecution . . . .” While Idaho downplays the extent of the attorney general‘s enforcement authority under Section 18-623, it has never disavowed his authority. In fact, the attorney general affirmed that the statute “authorizes the Attorney General to prosecute violations of Idaho Code [S]ections 18-622 or 18-623 if the local prosecuting attorney refuses to.” Att‘y Gen. Op. No. 23-1 at 2–3. That opinion, issued just before enactment of the statute, explicitly reinforced the attorney general‘s prosecutorial authority and took the position that the statute was constitutional.
Nor has Idaho attempted to “prevent county attorneys from enforcing the statute.” Isaacson, 84 F.4th at 1100. Quite the opposite—Idaho is vigorously defending the constitutionality of the statute and its broad coverage. Under these facts, Challengers have established a credible threat of prosecution under Section 18-623.
Challengers have asserted a particularized injury that is the result of the “statute‘s actual or threatened enforcement.” California v. Texas, 593 U.S. 659, 670 (2021). For the above reasons, the threat of future enforcement of the statute against Challengers is indeed “credible.” Babbitt, 442 U.S. at 298. This predicate is all that is needed to show imminent injury to a constitutional interest in a pre-enforcement challenge. See O‘Shea v. Littleton, 414 U.S. 488, 496 (1974) (limiting additional requirements to cases where there is no challenge to a criminal statute‘s constitutionality).
Challengers’ standing is not short-circuited by the fact that there are multiple authorized enforcers of the statute. The dissent‘s suggestion that Challengers must establish a substantial likelihood of enforcement specifically by the one named authority is foreclosed by Susan B. Anthony List. There, the Court analyzed the credibility of the threat of enforcement against the plaintiffs under an Ohio state law not by looking only to the threat posed by defendant Driehaus—an individual complainant to the Ohio Elections Commission—but rather to the threat posed collectively by the entire “universe of potential complainants.” 573 U.S. at 164. The analysis found that each actor with “authority to file a complaint with the Commission“—including the many actors who were not named as defendants—added to or “bolstered” the overall threat. Id. Susan B. Anthony List thus stands for the proposition that, when a statute distributes enforcement authority across multiple actors, and a plaintiff brings a pre-enforcement challenge, the threat of that enforcement is properly analyzed as a collective assessment of the threat posed by all the potentially enforcing authorities, together.7 Notably, despite
suggestion otherwise, we cite this case with respect to injury and not traceability or redressability.
B. Traceability and Redressability
The next inquiry in the standing sequence is whether Challengers’ injuries are fairly traceable to the challenged Idaho code and whether those injuries are likely to be redressed by a favorable decision. See Lujan, 504 U.S. at 560.
To establish traceability, Lujan has long required that “there must be a causal connection between the injury and the conduct complained of.” Id. “An injury is fairly traceable to a challenged action as long as the links in the proffered chain of causation are not hypothetical or tenuous and remain plausible.” Ass‘n of Irritated Residents v. EPA, 10 F.4th 937, 943 (9th Cir. 2021) (internal marks and citation omitted). The injury here is the burden on Challengers’ First Amendment rights—and, importantly, includes the chilling of those rights under the threat of prosecution.
Through the legislature‘s chosen vessels, the statute poses a threat to Challengers’ First Amendment rights. Challengers have sued one of the vessels through which the statute‘s effects—by its own terms—flow. This link suffices to meet their burden of showing causation and traceability. The statute supplies all the trace needed.
We are supported in this conclusion by our sister circuits. See Nat‘l Press Photographers Ass‘n v. McCraw, 90 F.4th 770, 784–85 (5th Cir. 2024), cert. denied sub nom. Nat‘l Press Photographers v. Higgins, No. 23-1105 (U.S. Oct. 7, 2024) (finding that traceability was satisfied as to three individual defendants where, as the attorney general does here, each possessed “authority to enforce” the laws at issue. One defendant was the head of an agency statutorily authorized to “enforce the laws protecting the public safety“; another had “statewide law-enforcement and arrest authority“; and the third was “charged with prosecuting individuals who violate criminal laws.“); Bronson v. Swensen, 500 F.3d 1099, 1110 (10th Cir. 2007) (“[T]he causation element of standing requires the named defendants to possess authority to enforce the complained-of provision.“)8; 303 Creative LLC v. Elenis, 6 F.4th 1160, 1175 (10th Cir. 2021), rev‘d on other grounds, 600 U.S. 570 (2023) (concluding in favor of traceability even where government defendant had “limited” enforcement authority).
Typically, when a court undertakes a “chain of causation” traceability analysis, it does so because the case involves unregulated
The chain of enforcement by the Idaho attorney general has, at most, three links: First, Challengers engage in conduct arguably proscribed by the statute; second, an Idaho county prosecutor refuses to prosecute the violation; and third, the Idaho attorney general decides, at his “sole discretion,” to prosecute Challengers himself.
In sum, the statute was proposed with the express purpose of enabling prosecution by the attorney general; a fiscal analysis was done, predicting that the attorney general‘s office would have sufficient funds to undertake prosecutions; and most importantly, the statutory text grants the attorney general “sole discretion” to exercise prosecution authority that he has still not disavowed.9 The point of the
case-and-controversy requirement is to ensure that adverse legal interests of the parties on both sides are at issue. Here, the statutory text clearly grants the attorney general a legal right to prosecute that, in the dissent‘s own telling, he would not otherwise have.
Nor is it the case that Challengers cannot establish traceability because the conduct they wish to engage in could, theoretically, violate other unchallenged Idaho statutes. As a matter of statutory interpretation, there is a fair amount of conduct that Challengers seek to engage in that only Section 18-623 proscribes, such as counseling or advising minors on how to obtain a legal abortion in other states. This conduct is not proscribed by Idaho‘s “[e]nticing of children” statute,
At bottom, Challengers reasonably assert that the course of conduct they wish to engage in would put them at risk of prosecution under Section 18-623. Idaho, for its part, does not disabuse them of that notion. Instead, Idaho argues only that Challengers do not plead the requisite mens rea—not that their conduct would not violate Section 18-623. Challengers’ injuries are thus fairly traceable to the attorney general‘s enforcement power under Section 18-623, even if Idaho could theoretically prosecute them under other statutes for some (but not all) of their proposed conduct. Tucson v. City of Seattle, 91 F.4th 1318, 1326 (9th Cir. 2024) (“Plaintiffs are not required to challenge all laws that plausibly criminalize their desired course of conduct in a given jurisdiction, regardless of how credible the threat to enforсe those laws is.“).
Challengers are not required to “demonstrate that there is a ‘guarantee’ that their injuries will be redressed by a favorable decision.” Mecinas v. Hobbs, 30 F.4th 890, 900 (9th Cir. 2022) (quoting Renee v. Duncan, 686 F.3d 1002, 1013 (9th Cir. 2012)). Instead, “[r]edressability is satisfied
so long as the requested remedy “would amount to a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered.”Id. (quoting Renee, 686 F.3d at 1013).
Partial amelioration of a harm also suffices for redressability. In discussing injury, the Supreme Court highlighted that a plaintiff need only show redress of “an injury,” not “every injury.” Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) (emphasis omitted).
Idaho offers a variation on its standing argument that redressability fails because county prosecutors would retain authority to bring prosecutions even if the attorney general were enjoined from enforcement of
Facing the threat of prosecution by an enforcer with statutory authority to bring suit, Challengers have satisfied both the traceability and redressability prongs of the standing requirement.
II. Sovereign Immunity and Ex parte Young
The Eleventh Amendment precludes federal courts from hearing “suits brought by a state citizen against the state or its instrumentality in the absence of consent.” Mecinas, 30 F.4th at 903 (quoting Culinary Workers Union, Loc. 226 v. Del Papa, 200 F.3d 614, 619 (9th Cir. 1999)). Despite this prohibition, there is an exception under Ex parte Young that allows “actions for prospective declaratory or injunctive relief against state officers in their official capacities for their alleged violations of federal law,” Coal. to Def. Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012), provided that the officer has “some connection with the enforcement of the act,” Ex parte Young, 209 U.S. 123, 157 (1908). Therefore, the question we consider is whether the Idaho attorney general‘s role in enforcing
As explained with respect to standing issues, it bears repeating here that, under
Crucially, Ex parte Young does not require that exercise of the defendant‘s enforcement role be imminent. See Nat‘l Audubon Soc‘y, Inc. v. Davis, 307 F.3d 835, 846-47 (9th Cir. 2002) (rejecting the argument that Ex parte Young requires a “present threat of enforcement“). Nor is proof required that the defendant intends to fulfill an affirmative duty of enforcement. See Ass‘n des Eleveurs de Canards et d‘Oies du Quebec v. Harris, 729 F.3d 937, 943-44 (9th Cir. 2013) (denying Eleventh Amendment immunity to an attorney general arguing that she “ha[d] not shown she intend[ed] to enforce” the statute at issue). These are questions more properly considered when examining Article III standing requirements.
Attorney General Labrador‘s criminal enforcement role under
In sum, “[t]he ‘connection’ required under Ex parte Young demands merely that the implicated state official have a relevant role that goes beyond ‘a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision.‘” Mecinas, 30 F.4th at 903-04 (quoting Wasden, 376 F.3d at 919). “[T]hat connection does not need to be primary authority to enforce the challenged law[,] . . . [n]or does the attorney general need to have the full power to redress a plaintiff‘s injury in order to have ‘some connection’ with the challenged law.” 281 Care Comm. v. Arneson, 638 F.3d 621, 632-33 (8th Cir. 2011) (citation omitted). The Idaho attorney general‘s designated role to enforce
Because Challengers have established standing, and the attorney general is a proper defendant under Ex parte Young, we move to the merits of the district court‘s grant of the injunction.
III. The Injunction—Likelihood of Success on the Merits
The district court issued an injunction against enforcement of
Before launching into an analysis of the statutory text, we note that this statute is unusual among trafficking statutes, despite its “abortion trafficking” title. There are two fundamental dissimilarities between
The statute‘s status as an anti-trafficking statute is further called into question by its placement in the Idaho Code.14 Calling the statute “abortion trafficking” does not make it so.
A. Void-for-Vagueness Challenge
A statute is void for vagueness if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Holder, 561 U.S. at 18 (quoting United States v. Williams, 553 U.S. 285, 304 (2008)). We “consider whether a statute is vague as applied to the particular facts at issue,” because “a plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Id. at 18-19 (internal marks and citation omitted). Of significance here, “a more stringent vagueness test should apply” if a statute interferes with First Amendment rights, id. at 19, and if a statute imposes criminal sanctions, Valle del Sol, Inc. v. Whiting, 732 F.3d 1006, 1019 (9th Cir. 2013). Even so, the Supreme Court teaches that “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” Williams, 553 U.S. at 304 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989)).
Challengers argue that the statute is unconstitutionally vague. They claim that they are unsure as to the scope of the statute and thus “intend to refrain from their usual activities for fear of prosecution.”
The ordinary meaning of “recruiting,” albeit broad, is sufficiently clear, such that we cannot say that
B. First Amendment Challenge—Right of Association
We briefly address and reject Challengers’ contention that
C. First Amendment Challenge—Speech
Challengers make a facial challenge to
The first step is to assess the statute‘s scope, because “it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” Williams, 553 U.S. at 293; see also Moody, 144 S. Ct. at 2398 (“The first step in the proper facial analysis is to assess the state laws’ scope.“).
The statute‘s coverage therefore depends upon the meaning of each of these words—recruiting, harboring, transporting—in the context of an adult procuring an abortion for a minor without parental consent. We follow the approach of the Supreme Court and this circuit to assess the scope and potential overbreadth of each term individually. See Am. for Prosperity Found., 594 U.S. at 615 (describing a specific “requirement” as “overbroad“); Hansen, 599 U.S. at 781-84 (referencing the overbreadth of a clause within a statute); United States v. Rundo, 990 F.3d 709, 716-21 (9th Cir. 2021) (upholding regulation as to “instigating” and “aid or abet,” but not “urging,” “organize,” or “encourage,” or “promote“); Arce v. Douglas, 793 F.3d 968, 985 (9th Cir. 2015) (“consider[ing] each [subsection] in turn” and defining overbreadth for each individually).
1. “Harboring” and “Transporting”
There is no serious confusion regarding what conduct constitutes “harboring” or “transporting” within the meaning of
Meanwhile, “transport” denotes carrying or conveyance of something or someone from one place to another.16 Given these definitions, and the context of these terms within the statute (“procuring . . . by harboring or transporting“), the conduct covered by “harboring” and “transporting” is not expressive on its face. Even crediting that there may be some expression associated with or implied in harboring or transporting, we are not convinced
2. “Recruiting”
Because neither thе “harboring” nor the “transporting” provision supports a facial First Amendment challenge to
Idaho does not define “recruiting” in this statute or in its other trafficking statutes, such that we might glean a legislative intent to depart from the plain meaning.18 Other relevant sources also do not provide a specialized meaning. Neither the federal Trafficking Victims Protection Act nor the United Nations’ Trafficking in Persons Protocol defines “recruitment.”19 The Second Circuit discussed “recruitment” in the context of trafficking but did not define it, suggesting that “recruiting,” even in the context of trafficking, retains its plain meaning.20 Other courts have done the same or used dictionary definitions.21 Our review leads to the conclusion that there is no specialized meaning of “recruit” to which we could give a “fair shake.” Hansen, 599 U.S. at 774-75.
Like the Supreme Court, then, we look to dictionary definitions. The ordinary meaning of the verb “recruit” is to seek to persuade, enlist, or induce someone to join an undertaking or organization, to participate in an endeavor, or to engage in a particular activity or event.22 Given this
Idaho endeavors to limit the statute‘s scopе by asserting simply that “providing information to minors” is not proscribed by
The statute contains the following limiting language: “the terms ‘procure’ and ‘obtain’ shall not include the providing of information regarding a health benefit plan.”
Apart from providing information, “recruiting” may also include subsidizing or fully funding an abortion—whether through donations or discounted services—by making the abortion more attractive (persuading) or more feasible (inducing). The Indigenous Alliance asserts that it may “provide financial assistance” for the “coordinat[ion of] the travel of pregnant people, including minors, from locations across the region, including Idaho, to and across state lines to access abortiоn.” The Northwest Fund, too, wishes to continue providing “financial, logistical [and] practical assistance.” Its work has involved “booking and paying for bus tickets, plane tickets, and ride shares“; “providing volunteers to drive patients to abortion appointments in states where abortion is legal“; and “provid[ing] food assistance, funding to abortion providers for their work, and lodging assistance.” Similar activities might include offering a discount on medical
Like the parties, Amici express concerns that “recruiting” will encompass financial support and logistical assistance. They contemplate what
Legal advice, too, might constitute recruiting under
Even expressions of persuasive encouragement might be prosecuted under the statute. Imagine an Idaho resident who lives near the border of Oregon and displays a bumper sticker that reads: “Legal abortions are okay, and they‘re right next door. Ask me about it!” A minor sees the sticker and, feeling desperatе, approaches the driver to request a ride across state lines. “I need an abortion,” the minor says, “and my parents can‘t know.” The driver says: “I‘m sorry, I can‘t drive you there. But, here, take this cash. That should cover the procedure.” The minor takes the cash, finds a ride to Oregon with another minor, and gets a legal abortion with the money the driver provided. Under
Worryingly, the “recruiting” provision encompasses an adult‘s encouragement of a minor not only to obtain a legal abortion out-of-state, but also to obtain a legal abortion in Idaho under one of the few exceptions to the state‘s near-total abortion ban, such as pregnancy resulting from an act of rape or incest that was previously reported to law enforcement. That is, an adult concerned for the wellbeing of an underage victim of incest would be prohibited from counseling and then assisting that victim in obtaining an abortion without informing a parent—who may well be the perpetrator.
Some “recruiting” appears at first glance to be out of scope—namely, any “recruiting” that is not done in conjunction with procuring an abortion or obtaining an abortion-inducing drug for a minor. The statute does not criminalize “recruiting” alone, but rather “procuring” or “obtaining” by “recruiting.” An adult merely distributing а pamphlet of information on states’ laws regarding abortion, or displaying a pro-choice bumper sticker, would not fall within the scope of the statute. Both
However, we note that these scenarios could be considered an “attempt” to procure an abortion for a minor by recruiting that minor without parental consent. If done in tandem with another adult who did procure an abortion, the above could be form of “aiding and abetting” such procurement. With prosecutions for attempting or aiding and abetting procurement on the table, the reach of the statute could extend even further. For example, an attorney advising a minor about the minor‘s rights to obtain a legal abortion outside of Idaho and promising absolute confidentiality (including from the minor‘s parents), coupled with arrangements to procure an abortion, could be prosecuted for attempting or aiding and abetting a violation of
These plain language applications of “procur[ing] . . . by recruiting” underscore that the statutory language covers a wide array of speech аnd conduct. Idaho‘s efforts to limit the reach of
Having ascertained the broad scope of “recruiting,” we next ask whether the speech or conduct swept into that scope is expressive and protected under the First Amendment. Speech is protected unless it falls within a narrow exception to First Amendment protection. See, e.g., United States v. Stevens, 559 U.S. 460, 468 (2010) (listing categories: “obscenity, defamation, fraud, incitement, and speech integral to criminal conduct” (internal citations omitted)).
Conduct, too, may be protected, if it evinces “an intent to convey a particularized message” and “in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” Spence v. Washington, 418 U.S. 405, 410-11 (1974).
Encouragement, counseling, and emotional support are plainly protected speech under Supreme Court precedent, including when offered in the difficult context of deciding whether to have an abortion. In McCullen v. Coakley, the Court held that “sidewalk counseling“-the act of having a “close, personal conversation” with a person entering an abortion clinic as an “effective means of dissuading women from having abortions” was, without question, protected speech. 573 U.S. 464, 473, 487 (2014); see also id. at 489 (“Petitioners . . . seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations.“); Hill v. Colorado, 530 U.S. 703, 714 (2000) (stating that the “First
Likewise, information related to the availability of abortions, education on reproductive health care options, and instruction as to how to access an abortion legally are also protected under Supreme Court precedent. Announcements related to the availability of abortions “involve the exercise of the freedom of communicating information and disseminating opinion.” Bigelow v. Virginia, 421 U.S. 809, 822 (1975) (regarding an advertisement that stated: “Abortions are now legal in New York. There are no residency requirements“). A “purely factual” statement about a medical drug is also protected, so long as it is a statement of public interest. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 760-65 (1976). Information and instructions regarding the availability and means of procuring an abortion procedure or drug (likely including specifics, such as who the provider is, when and where the procedure would take place, or what a drug would cost) are thus squarely protected.
One facet of recruiting encompasses legal advice about the minor‘s rights. The First Amendment protects speech “advocating lawful means of vindicating legal rights,” including “advising another that his legal rights have been infringed.” In re Primus, 436 U.S. 412, 432 (1978) (alterations omitted) (quoting NAACP v. Button, 371 U.S. 415, 437, 434 (1963)).
Public advocacy and education campaigns on issues of public interest are also protected political speech. See, e.g., Fed. Election Comm‘n v. Wis. Right to Life, Inc., 551 U.S. 449, 470 (2007). This includes
Whatever the degree of their protection, none of these expressions lose that protection when expressed to minors. “[O]nly in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to [minors].” Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 (1975). “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Id. at 213-14. The statute‘s mens rea requirement-“with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor“-also does not delimit the First Amendment problems with Section 18-623. The Supreme Court has expressed its “doubts” that “punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority.” Brown v. Ent. Merch. Ass‘n, 564 U.S. 786, 802 (2011).
We now come to Idaho‘s contention that the expressive speech and conduct covered by “recruiting,” otherwise protected by the First Amendment, is rendered unprotected because it is speech integral to criminal conduct. For that exception to apply, speech must be “used as an integral part of conduct in violation of a valid criminal statute.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949). It is true that “recruitment” under Section 18-623 occasionally may be “speech integral to criminal conduct,” but those circumstances reflect a small subset of the protected speech covered within recruitment.
Idaho is correct that recruiting an Idaho minor to get an illegal abortion in Idaho qualifies as speech integral to criminal conduct. See, e.g.,
But Section 18-623 goes well beyond the strictures of Section 18-622, and indeed beyond Idaho‘s borders. The statute explicitly reaches procurement of abortions that are legal where they are performed: “It shall not be an affirmative defense to a prosecution . . . that the abortion provider or the abortion-inducing drug provider is located in another state.”
Idaho‘s asserted police powers do not properly extend to abortions legally performed outside of Idaho. As Justice Blackmun wrote:
A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State. It may seek to disseminate information so as to enable its citizens to make better informed decisions when they leave. But it may not, under the guise of exercising internal police powers, bar a citizen of another State from disseminating information about an activity that is legal in that State.
To qualify as speech “integral to unlawful conduct,” the speech must be
Can the abortion trafficking statute manufacture both the “underlying offense” and the exception to otherwise protected speech? Idaho cites United States v. Dhingra as support for the proposition that it can. In Dhingra, we interpreted a statute as regulating only unprotected speech when it regulated “the targeted inducement of minors for illegal sexual activity“-even if speech was used as the “vehicle” for “ensnar[ing] the victim.” 371 F.3d 557, 561 (9th Cir. 2004), as amended on denial of reh‘g (July 23, 2004) (quoting United States v. Meek, 366 F.3d 705, 721 (9th Cir. 2004)). Both that opinion and the statute in question referenced separate, non-expressive activity that was illegal, independent of the inducement thereof. See
Under this statute, a prosecution may be brought against someone who procured an abortion for a minor by recruiting, but not harboring or transporting, that minor. In the context of a legal abortion, recruiting may be the only hook for potential prosecution under
Next, we evaluate whether the broad scope of Section 18-623‘s ban on “recruiting” “unduly burden[s] expression.” Moody, 144 S. Ct. at 2398 (quoting Zauderer v. Off. of Disciplinary Couns. of Sup. Ct. of Ohio, 471 U.S. 626, 651 (1985)). In this final step, we must determine whether the statute‘s prohibition on “procuring an abortion” by “recruiting” a minor, given its ordinary meaning, is unconstitutional in “a substantial number of its applications . . . judged in relation to [its] plainly legitimate sweep.” Am. for Prosperity Found., 594 U.S. at 618. We conclude that it is.
As discussed above, “recruiting” has broad contours that overlap extensively with the First Amendment. It sweeps in a large swath of expressive activities-from encouragement, counseling, and emotional support; to education about available medical services and reproductive health care; to public advocacy promoting abortion
IV. Severability
We now come to the question of whether the “recruiting” prong of Section 18-623-where we have held the constitutional infirmity with the statute lies-is severable from the rest of the statute. We conclude that it is.
Because severability is an issue of state law, we “must follow the approach the Idaho Supreme Court would take to the severability question.” Wasden, 376 F.3d at 935. Under Idaho law,
Whether portions of a statute which are constitutional shall be upheld while other portions are eliminated as unconstitutional involves primarily the ascertainment of the intention of the legislature. When part of a statute or ordinance is unconstitutional and yet is not an integral or indispensable part of the measure, the invalid portion may be stricken without affecting the remainder of the statute or ordinance. However, if an unconstitutional portion of a statute is integral or indispensable to the operation of the statute as the legislature intended, the provision is not severable, and the entire measure must fail.
Id. (quoting State v. Nielsen, 960 P.2d 177, 180 (Idaho 1998)). Idaho courts apply this standard to severability questions regardless of whether the statute in question contains a severability clause, as this one does. See
In our view, the “recruiting” prong of Section 18-623 is neither integral nor indispensable to the operation of the statute as the Idaho legislature intended and therefore may be severed from the rest of the law. Without the “recruiting” prong, the statute criminalizes “harboring or transporting” a minor to “procure an abortion” “with the intent to conceal [the abortion] from the parents or guardian” of the minor-an intelligible crime that reaches the problems the legislature sought to rectify.24 Compare, e.g., Wasden v. State Bd. of Land Comm‘rs, 280 P.3d 693, 701 (Idaho 2012) (holding that the unconstitutional provisions of a statute were not severable because “every aspect of the statute that relates to something other than [the unconstitutional provision] is either moot or superfluous“), with Boundary Backpackers, 913 P.2d at 1148 (declining to sever because to do so would “emasculate[] the obvious purpose of the ordinance“). Idaho asserts that “sheltering (or harboring) a minor without permission from the minor‘s parents and transporting that minor within the state, again without parental permission” constitutes the “core
V. The Remaining Winter Factors
Although success on the merits is the most important Winter factor, we address the other injunction factors, which require little analysis. Irreparable harm is a given: “Because [Challengers] have a colorable First Amendment claim, they have demonstrated that they likely will suffer irreparable harm.” Am. Bev. Ass‘n v. City of San Francisco, 916 F.3d 749, 758 (9th Cir. 2019) (en banc). And for the same reasons, the balance of equities and public interest favors Challengers, because if a party “has (at a minimum) raised serious First Amendment quеstions, that alone compels a finding that the balance of hardships tips sharply in its favor.” Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 695 (9th Cir. 2023) (internal marks and citation omitted). Finally, we note that the third and fourth factors “merge” because the injunction is against a government entity. Nken v. Holder, 556 U.S. 418, 435 (2009) (combining these factors “when the Government is the opposing party“). We do not question Idaho‘s interest in protecting the children within its borders. But Idaho may protect those interests without infringing upon Challengers’ constitutional rights. Meinecke, 99 F.4th at 526.
Conclusion
Section 18-623, a novel post-Dobbs legislative undertaking, will continue to be subject to careful testing in further litigation in the district court and beyond. Our holding at this early preliminary injunction stage is narrow: Challengers are likely to succeed in their claim that Section 18-623‘s “recruiting” prong is an unconstitutional infringement on their protected speech. We therefore affirm the district court‘s order preliminarily enjoining the Idaho attorney general from enforcing the “recruiting” prong of Section 18-623. Because Challengers are not likely to succeed on the merits of their remaining claims-the void-for-vagueness and association claims, as well as the other First Amendment claims with respect to the remainder of the statute-we reverse the district court with respect to those claims and remand to the district court to modify the preliminary injunction consistent with this opinion.
The parties shall bear their own costs on appeal.
BEA, Circuit Judge, concurring in the judgment in part and dissenting in part:
Plaintiffs in this case have sued the Idaho Attorney General (“AG“) and obtained a preliminary injunction precluding him-but no one else, as he is the sole party Defendant-from enforcing an Idaho statute that the Plaintiffs allege, and the majority concludes, is at least partially unconstitutional. Just one problem: on this record, the AG does not and cannot enforce the statute in question-only 44 county prosecutors can. The AG can enforce the statute only if one or more of the county prosecutors refuses to do so. None has. Thus, Plaintiffs have sued the wrong person, and, even having prevailed in district court, Plaintiffs remain subject to the same allegedly unlawful prosecutions from which they sought relief in every one of the 44 counties of Idaho. In other words, Plaintiffs’ injuries are not traceable to the AG, and, for the same reasons, the injunction issued by the district court does not redress their alleged injuries.
Accordingly, Plaintiffs have not established Article III standing, and the federal courts lack jurisdiction to consider their claims. Because the majority concludes otherwise, I respectfully dissent.1
I.
The general scheme of criminal enforcement in Idaho contemplates a limited role for the AG. Under Idaho law, “[i]rrespective of police powers vested by statute in state . . . officers, . . . the primary duty of enforcing all the penal provisions of any and all statutes of this state, in any court, is vested in the . . . prosecuting attorney of each of the several counties.”
This is not to say that the AG can never step in when a county prosecutor fails to enforce faithfully the law as written. Idaho law provides that he can do so, when, “in the judgment of the governor the penal laws of this state are not being enforced as written[] in any county.”
Against that backdrop, the statute before us today adds a bit of detail about how it is to be enforced. It provides that the AG may, at his sole discretion, prosecute violations of the statute, “if the prosecuting attorney . . . refuses to prosecute any violations of any of the provisions of this section by any person without regard to the facts or circumstances.”
What follows from this legal landscape is an enforcement mechanism for this statute that differs only slightly from Idaho‘s general regime. Whereas the general rule is that the AG ordinarily cannot assume control of prosecutions from county prosecutors absent the Governor‘s intervention, section 18-623 provides that the AG can step in unilaterally to prosecute a violation, but only when the two conditions described above are met. So, while Plaintiffs’ contention that section 18-623 “expand[ed] [the AG‘s] enforcement role” is somewhat accurate, it is not the case that the AG “can prosecute under the new statute regardless whether the county prosecutor wishes there to be a prosecution.” A plain reading of the statutory text, read together with Idaho‘s general scope of the prosecutorial function, compels the conclusion that the AG‘s enforcement authority is limited to those situations in which the county prosecutor has declined to bring a case “without regard to the facts or circumstances.” That is, the AG‘s ability to intervene is contingent not upon a county prosecutor‘s mere refusal to bring a case within his discretion, but upon his refusal to bring a case without having exercised his discretion, i.e., “without regard to the facts or circumstances” of the case.
II.
On these facts, Plaintiffs do not have standing, as Plaintiffs have neither pleaded nor proven that any-not to say all-of the country prosecutors will act in such a way to render the AG responsible for their future prosecution, i.e., to trigger his authority to prosecute. “The party invoking federal jurisdiction bears the burden of establishing” Article III standing, which includes the burden to establish both “traceability” and “redressability.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 61 (1992). These two requirements are closely related, and they go hand in hand in the case before us today. Traceability means that “there must be a causal connection between the injury and the conduct complained of,” i.e., the injury must be the result of some action by the defendant, “not the result of the independent action of some third party not before the court.” Id. at 560 (cleaned up). Redressability means that “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561 (cleaned up). Relief that “does not redress a cognizable Article III injury” is therefore
As an initial matter, I do not dispute that Plaintiffs have plausibly alleged, as an injury in fact, a “credible threat of future prosecution.” What I do dispute is from whom that threat arises. For this reason, the majority‘s reliance on a case about the injury requirement-and one that has nоthing to do with traceability or redressability-is as inapposite as it is bizarre. Maj. Op. at 15-16, citing Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014). The Court in Susan B. Anthony List concluded that the threat of future enforcement against the plaintiff was credible precisely “because the universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations.”2 573 U.S. at 164 (emphasis added). Here, literally the opposite is true: the universe of potential complainants includes only state prosecutors constrained by ethical guidelines, and the AG, who by the terms of the statute possesses no enforcement authority unless and until a county prosecutor refuses to prosecute without consideration to the facts and circumstances. Such a refusal by any county prosecutor(s) has not occurred nor do Plaintiffs allege that it will occur in the future. In Susan B. Anthony List, the defendant Driehaus-and for that matter, any person in the whole world-could bring a complaint against the plaintiff. See id. Here, the sole defendant AG cannot prosecute the plaintiffs-not unless and until one or more of the 44 county prosecutors refuses to prosecute and does so without exercising his or her discretion. None of the county prosecutors are alleged or proven to have done so. For that reason, Plaintiffs cannot satisfy the other two critical standing elements, and Susan B. Anthony List simply does not say anything to alter that conclusion.
To see why Plaintiffs cannot satisfy traceability or redressability here, consider the injury at issue and how that injury will ostensibly occur. The alleged injury, according to the majority, is “a credible threat of prosecution under Section 18-623.” Maj. Op. at 14. On the majority‘s telling, that injury is traceable to the AG as part of a “chain of enforcement [that] has, at most, three links.” Id. at 18. The first link is that Plaintiffs engage in protected conduct “arguably proscribed by the statute.” Id. That‘s easy enough to understand. But the second link, according to my colleagues, is that “an Idaho county prosecutor refuses to prosecute the violation.” Id. This is the critical step in the causation chain, because then, and only then, does the majority‘s third link come to
And it is at this second step where Plaintiffs’ and the majority‘s theory of traceability and redressability falls apart. The majority‘s purported causation chain depends on the occurrence of a crucial event: an Idaho county prosecutor will refuse to prosecute a particular case, without regard to the facts and circumstances. That refusal must occur for the injunction at issue to be of any help to Plaintiffs. If it does not occur, the AG has no authority to prosecute, and the injunction against him won‘t prevent the allegedly injurious prosecutions of Plaintiffs by county prosecutors. And whether that refusal will occur or not is an entirely speculative question-we simply do not know if or when a county prosecutor would refuse to bring a case. But “it is a bedrock principle that a federal court cannot redress injury that results from the independent action of some third party not before the court.” Murthy v. Missouri, 144 S. Ct. 1972, 1986 (2024) (cleaned up). That idea flows from another bedrock principle, that “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561 (cleaned up) (emphasis added). And where, as here, Plaintiffs have requested “forward-looking relief, they must face a ‘real and immediate threat of repeated injury‘” to qualify for judicial relief. Murthy, 144 S. Ct at 1986 (quoting O‘Shea v. Littleton, 414 U.S. 488, 496 (1974)). So, even under the majority‘s own construction of a causal chain, the Supreme Court‘s standing precedents clearly foreclose traceability and redressability here.
There is another flaw in the majority‘s second step, which is that it is not accurate. The second step is not, as the majority states, a county prosecutor‘s mere refusal to bring a case under section 18-623. The refusal must be “without regard to the facts or circumstances” of a particular case.
My colleagues get around this causation issue first by asserting that an intervening action of a third party does not automatically break the causal chain. Maj. Op. at 17-18. Although I question whether this principle of our caselaw remains viable (if it ever was) after Murthy, see 144 S. Ct. at 1986 (recognizing the “bedrock principle” that courts cannot redress injuries caused by the independent actions of third parties not before the court), the more important issue here is not merely the independent actions of third parties but rather the entirely uncertain nature of those actions. We have no way of knowing how the county prosecutors would or would not exercise their discretion, so we are left to do nothing but speculate.
The majority responds that we do not need to speculate because the legislature “wrote this precise causation chain into Section 18-623.” Maj. Op. at 18. But a subjective belief by the legislature that someday, somewherе, an Idaho county prosecutor might decline to prosecute a violation of the statute, and do so without regard to the facts and circumstances of the case, cannot possibly carry Plaintiffs’ burden to demonstrate standing. “At the preliminary injunction stage, [Plaintiffs] must make a ‘clear showing’ that [they are] ‘likely’ to establish each element of standing.” Murthy, 144 S. Ct. at 1986 (quoting Winter, 555 U.S. at 22). Here, that means Plaintiffs must demonstrate that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561. That the text of section 18-623 contemplates the possibility of an enforcement role for the AG in certain limited circumstances is beside the point. Plaintiffs must establish a concrete likelihood that the circumstances giving rise to the AG‘s enforcement authority have occurred or will occur in the future.
Given those clear instructions from the Supreme Court, it‘s no wonder that the cases from our sister Circuits on which the majority relies do not support its lawless position. In National Press Photographers Ass‘n v. McCraw, 90 F.4th 770 (5th Cir. 2024), the Fifth Circuit found standing where the defendants were required to enforce the law (here, no such requirement). Id. at 784.3 In Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007), the Tenth Circuit found that there was not standing because the defendant lacked “primary authority for prosecution of criminal actions,” which lay instead with local prosecutors. Id. at 1110 (cleaned up). Sound familiar? Not one case cited by the majority finds standing where the defendant‘s enforcement authority is entirely conditional on the actions of someone else, who is not a party to the litigation and whose decision-making processes the federal courts routinely decline to evaluate.
And what about the fact that Plaintiffs, even with this injunction in place, remain subject to prosecution by the county prosecutors? How can Plaintiffs establish, as they must, that the injunction nonetheless actually remedies their injury? See Lujan, 504 U.S. at 561. The majority solves that problem by locating a principle of “partial amelioration of a harm.” Maj. Op. at 21. One problem with that solution is that it depends on the same speculative reasoning described above. The harm to Plaintiffs-threat of unlawful prosecution that chills their speech-is “partially ameliorated” if, and only if, a county prosecutor refuses to prosecute without regard to the facts or circumstances of a particular case. If that doesn‘t happen, then the harm is not ameliorated at all because the injunction does not preclude county prosecutors from bringing the prosecutions from which Plaintiffs seek relief. So, to recap, the injunction bars prosecution by someone who cannot prosecute (the AG), but does not bar prosecution
Another problem is the principle of “partial amelioration” itself, which the majority derives from a footnote in Larson v. Valente, 456 U.S. 228, 243 n.15 (1982). Maj. Op. at 21. There, the Supreme Court stated that a plaintiff can demonstrate redressability if the remedy would redress “a discrete injury to himself, [but he] need not show that a favorable decision will relieve his every injury.” Larson, 456 U.S. at 243 n.15 (emphasis in original). But here, there is only one injury, namely the threat of prosecution under section 18-623 for allegedly protected conduct. Plaintiffs cannot establish that the injunction here remedies that injury, partially or most importantly, at all. That the injury could in theory be inflicted by the AG in a limited and speculative set of circumstances does not render the injunction directed at him a valid Article III remedy.
The majority‘s misunderstanding of this concept is perhaps illustrated best by its reassurance that there is nothing to see here, because “[t]he point of the case-and-controversy requirement is to ensure that adverse legal interests of the parties on both sides are at issue.” Maj. Op. at 18-19. Wrong. The point of Article III‘s standing requirement is to ensure that federal courts don‘t conduct “general legal oversight” over every matter on which parties may disagree. See TransUnion LLC v. Ramirez, 594 U.S. 413 at 423-424 (2021). But that is precisely what the majority has done here. By the terms of the injunction the majority blesses today, Plaintiffs’ speech should be no less chilled-and they should be no less injured-as on the day they filed this lawsuit, because every Idaho county prosecutor remains frеe to prosecute them for the conduct they seek to protect. Not to worry, says the majority-a published Ninth Circuit decision has told Idaho state courts that such prosecutions would be unlawful under the federal Constitution if an Idaho county prosecutor brings a case. If that is not an advisory opinion, I do not know what would be. See TransUnion, 594 U.S. at 424 (“[F]ederal courts do not issue advisory opinions.“).
None of this is to say Plaintiffs should be left without recourse from the allegedly unconstitutional prosecutions they fear. But “those seeking to challenge the constitutionality of state laws are not always able to pick and choose the timing and preferred forum for their arguments.” Whole Woman‘s Health v. Jackson, 595 U.S. 30, 49 (2021). Individual plaintiffs could file suit against the prosecutors for the counties in which they live to obtain relief for themselves. And “many federal constitutional rights are as a practical matter asserted typically as defenses to state-law claims, not in federal pre-enforcement cases like this one.” Id. at 49-50. Plaintiffs would of course remain free to raise those defenses in as-applied challenges to specific prosecutions. Instead, the majority crafts a broad remedy, that applies everywhere in Idaho, and it sanctions an injunction that precludes the AG from exercising power he does not have in the first place. But we may not “disregard the traditional limits on the jurisdiction of federal courts just to see a favored result win the day.” Id. at 51.
III.
The majority‘s holding today is contrary to fundamental standing principles. It recognizes federal jurisdiction over a Defendant who is not responsible for Plaintiffs’ claimed injuries. And it allows “[r]elief that