Planned Parenthood Great Northwest, Hawaii, Alaska v. Raul LabradorPlanned Parenthood Great Northwest, Hawaii, Alaska v. Raul Labrador
OPINION
Defendants.
Appeal from the United States District Court for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Seattle, Washington
Filed December 4, 2024
Before: Kim McLane Wardlaw, William A. Fletcher, and Eric D. Miller, Circuit Judges.
Opinion by Judge W. Fletcher;
Partial Concurrence by Judge Miller
SUMMARY*
First Amendment/Abortion
The panel affirmed the district court‘s order preliminarily enjoining on First Amendment grounds the Idaho Attorney General from enforcing his interpretation of a provision of Idaho‘s criminal abortion statute,
The panel first held that the physician plaintiffs, who prior to the Opinion Letter, had provided their patients with information or referrals to abortion providers outside of Idaho, had established Article III standing. The panel next held that the case was ripe and not moot despite the Attorney General‘s subsequent withdrawal of the Opinion Letter as void on procedural grounds. The withdrawal did not disavow the Attorney General‘s interpretation of
Addressing the merits, the panel agreed with the district court that the plaintiffs established a likelihood of success on the merits of their First Amendment claim. The Attorney General‘s interpretation of
Concurring in part and concurring in the judgment, Judge Miller noted that in this preliminary injunction appeal, the Idaho Attorney General challenged only the jurisdiction of the district court and expressly disclaimed any challenge to the merits of the injunction. Judge Miller agreed with the majority that the Attorney General‘s jurisdictional argument failed, but did not join the portion of the opinion in which the court went on to address the merits because the court should confine itself to the issues presented by the parties and refrain from opining on constitutional questions that have not been briefed and that are unnecessary to the resolution of this appeal.
COUNSEL
Peter G. Neiman (argued), Alan E. Schoenfeld, Michelle N. Diamond, and Rachel E. Craft, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Katherine Mackey, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, Massachusetts; Jennifer R. Sandman and Catherine P. Humphreville, Planned Parenthood Federation of America, New York, New York; Emily M. Croston and Paul C. Southwick, American Civil Liberties Union of Idaho Foundation, Boise, Idaho; Andrew D. Beck, Meagan Burrows, Scarlet Kim, and Ryan Mendias, American Civil Liberties Union Foundation, Washington, D.C.; Colleen R. Smith, Stris & Maher LLP, Washington, D.C.; for Plaintiffs-Appellees.
OPINION
W. FLETCHER, Circuit Judge:
In March 2023, Idaho Attorney General Raúl Labrador wrote a letter on his official stationery to a state legislator stating that he interpreted the word “assists” in
I. Factual and Procedural Background
A. Idaho Code § 18-622
The Idaho legislature passed
With exceptions not relevant here,
B. The Opinion Letter
On March 27, 2023, Attorney General Labrador sent a letter to Idaho Representative Brent Crane (the “Opinion Letter“). Representative Crane had requested the Attorney General‘s opinion on whether
Idaho law prohibits an Idaho medical provider from either referring a woman acrоss state lines to access abortion services or prescribing abortion pills for the woman to pick up across state lines. Idaho law requires the suspension of a health care professional‘s license when he or she “assists in performing or attempting to perform an abortion.”
Idaho Code § 18-622(2) 1 (emphasis added). The plain meaning of assist is to give support or aid. An Idaho health care professional who refers a woman across state lines to an abortion provider or who prescribes abortion pills for the woman across state lines has given support or aid to the woman in performing or attempting to perform an abortion and has thus violated the statute.
(emphasis in original).
The Opinion Letter was signed by the Attorney General and printed on his official letterhead. In his brief to us, the Attorney General writes that the Opinion Letter was intended to be a communication only to Representative
C. The Lawsuit
On April 5, 2023, after the Opinion Letter was made public, Planned Parenthood Great Northwest and two physicians, Dr. Caitlin Gustafson and Dr. Darin Weyhrich, (collectively, “plaintiffs“), sued the Attorney General, all Idaho county prosecutors, and individual members of the Idaho State Boards of Medicine and Nursing. Plaintiffs alleged that
The Attorney General and some of the county prosecutor defendants filed a motion to dismiss and an opposition to the plaintiffs’ motion for a preliminary injunction. They maintained that the case should be dismissed as non-justiciable and as barred by the Eleventh Amendment. They did not defend the constitutionality of
D. Post-Filing Developments
On April 7, two days after plaintiffs filed suit, the Attorney General sent a second letter to Representative
On March 27, 2023, I provided you with a letter analysis of several questions prepared by my Associate Attorney General. Since then, the letter analysis has been mischaracterized as law enforcement guidance sent out publicly to local prosecutors and others. It was not a guidance document, nor was it ever published by the Office of the Attorney General.
Due to subsequent events in the legislative process and my determination that your request was not one I was required to provide under Idaho law, that analysis is now void. Accordingly, I hereby withdraw it.
The Withdrawal Letter characterized the Opinion Letter as void on the ground that Representative Crane‘s request for an opinion was procedurally improper under
On April 24, the district court held a hearing on the motion to dismiss and the motion for a preliminary injunction. The court asked counsel for the Attorney
On April 27, the Attorney General issued Opinion No. 23-1, an official opinion regarding the Attorney General‘s statutory authority to enforce
That same day, the Attorney General asked permission to file a supplemental brief to address the effect of Opinion No. 23-1 on the justiciability of plaintiffs’ claims. He also asked permission to submit supplemental briefing to address whether plaintiffs’ intended conduct of counselling and referring patients to out-of-state abortion prоviders was protected speech under the First Amendment. The district court denied both requests, writing that the Attorney General “could have issued the new opinion or made the protected speech argument on the original briefing schedule. Plaintiffs have waited several weeks for urgent relief—due in part to the Court‘s calendar—and the Court will not impose further
E. The Preliminary Injunction
On July 31, the district court denied the motion to dismiss and granted plaintiffs’ motion to preliminarily enjoin the Attorney General from enforcing
II. Standard of Review
“We review the district court‘s decision to grant or deny a preliminary injunction for abuse of discretion.” Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam). We review de novo the district court‘s interpretation of underlying legal principles. Id. “[A] district court abuses its discretion when it makes an error of law.” Id.
A. Justiciability
1. Article III Standing
The “irreducible constitutional minimum” of Article III standing has “three elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Article III “requires a plaintiff to have [1] suffered an injury in fact, [2] caused by the defendant‘s conduct, that [3] can be redressed by a favorable result.” Tingley v. Ferguson, 47 F.4th 1055, 1066 (9th Cir. 2022) (citing Lujan, 504 U.S. at 560–61) (bracketed numbers added). Where, as here, plaintiffs bring a pre-enforcement challenge under the First Amendment, “‘unique standing considerations’ . . . ‘tilt dramatically toward a finding of standing.‘” Id. at 1066–67 (quoting Lopez v. Candaele, 630 F.3d 775, 781 (9th Cir. 2010)). That is because “a chilling of the exercise of First Amendment rights is, itself, a constitutionally sufficient injury.” Libertarian Party of L.A. Cnty. v. Bowen, 709 F.3d 867, 870 (9th Cir. 2013).
On appeal, the Attorney General argues that the two physician plaintiffs have not established an Article III injury with respect to their First Amendment claims. Specifically, he argues the Opinion Letter does not convey “a credible threat of prosecution.” 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)); “Pre-enforcement injury is a special subset of injury-in-fact,” where “the injury is the anticipated enforcement of the challenged statute in the future.” Peace Ranch, LLC v. Bonta, 93 F.4th 482, 487 (9th Cir. 2024). However, “neither the mere existence of a proscriptive statute nor a generalized threat of prosecution” satisfies the injury requirement.
In Thomas, our circuit articulated a three-prong framework for “evaluating the genuineness of a claimed threat of prosecution.” Id.
The Supreme Court has articulated the framework for evaluating pre-enforcement injury in a slightly different way, “albeit incorporating рart of the essence of the Ninth Circuit test.” Peace Ranch, 93 F.4th at 487. Under Driehaus, a plaintiff demonstrates injury-in-fact by showing “[1] an intention to engage in a course of conduct arguably affected with a constitutional interest, but [2] proscribed by a statute, and [3] there exists a credible threat of prosecution thereunder.” Driehaus, 573 U.S. at 159 (quoting Babbitt, 442 U.S. at 298) (bracketed numbers added).
Though our circuit “has toggled between” the Thomas and Driehaus formulations, we have “adopt[ed] the Supreme Court‘s framework” in Driehaus. Peace Ranch, 93 F.4th at 487 (adopting Driehaus and citing Arizona v. Yellen, 34 F.4th 841, 849 (9th Cir. 2022) (applying Driehaus), and Clark v. City of Seattle, 899 F.3d 802, 813 (9th Cir. 2018) (applying Thomas)). The parties’ briefing and the district court‘s order analyzed standing under Thomas. Shortly before oral argument, the parties filed Rule 28(j) letters that raised arguments under Driehaus in light of our decision in Peace Ranch.
The Attorney General does not challenge the Article III standing of Planned Parenthood in this appeal. If the physician plaintiffs have standing, we need not address the
We address the three Driehaus criteria in turn.
a. Intended Course of Conduct Affected with a Constitutional Interest
It is clear that plaintiffs have shown that they had an intended course of conduct affected with a constitutional interest. “[A] plaintiff need not plan to break the law” to show an “intention to engage in a course of conduct” under Driehaus. Peace Ranch, 93 F.4th at 488. Rather, we “must ask whether the plaintiff would have the intention to engage in the proscribed conduct, were it not proscribed.” Id.
The physician plaintiffs testified that prior to the Attorney General‘s Opinion Letter they referred or planned to refer patients to out-of-state abortion services. They stopped providing such referrals after the Opinion Letter became public because they feared enforcement. See Tingley, 47 F.4th at 1068 (“[W]e do not require plaintiffs to specify ‘when, to whom, where, or under what сircumstances’ they plan to violate the law when they have already violated the law in the past.“) (quoting Thomas, 220 F.3d at 1139).
Dr. Gustafson stated in a sworn declaration that, after
Before the Opinion Letter became public, Dr. Gustafson also referred patients to abortion providers outside of Idaho. The referral process involved conversations with patients and with “out-of-state providers to help facilitate continuity of care and provide medically pertinent information to the receiving physician.” If, for example, a patient presented with a medical complication or a complex mental health or social history and needed abortion care, Dr. Gustafson contacted out-of-state abortion providers to communicate the patient‘s medical history.
After the Opinion Letter became public, Dr. Gustafson stopped providing patients with information and recommendations about out-of-state abortion services because she feared her statements violated
Dr. Weyhrich stated in a sworn declaration that, even after
b. Conduct Arguably Proscribed by the Statute
It is equally clear that plaintiff‘s intended conduct was arguably proscribed by the statute. The Attorney General‘s Opinion Letter states that
c. Substantial Threat of Enforcement
Finally, plaintiffs have shown a substantial threat of enforcement. The ability to satisfy this prong “often rises or falls with the enforcing authority‘s willingness to disavow enforcement.” Peace Ranch, 93 F.4th at 490. In Peace
The same is true here. Far from a general warning of enforcement, the Opinion Letter singled out “Idaho health care professional[s]” who perform the specific act of “referring” patients to abortion providers “across state lines.” Both physician plaintiffs testified that they referred or intended to refer patients to abortion providers outside Idaho but have self-censored after the Opinion Letter became public.
The Attorney General has refused to disavow his interpretation of
The Attorney General argues there is no threat of enforcement based on the Opinion Letter because he lacks authority to enforce
On the record before us, we conclude that there is a significant likelihood that a county prosecutor will enforce
The Attorney General also argues that the Opinion Letter cannot be construed as a threat of enforcement because it was intended as a private communication. However, the Opinion Letter is no ordinary private communication. It was signed by the Attorney General in his official capacity, written on the Attorney General‘s official letterhead, and delivered to an Idaho lawmaker in response to that lawmaker‘s request for the Attorney General‘s interpretation of thе statute. As the district court noted, the Opinion Letter remains the Attorney General‘s only public written interpretation of
2. Ripeness
“The ripeness doctrine is “drawn from both
a. Constitutional Ripeness
“For a suit to be ripe within the meaning of
The Attorney General argues this case is constitutionally unripe for the same reasons he contends the physician plaintiffs lack injury-in-fact. But as is apparent from our discussion above, the physician plaintiffs’
b. Prudential Ripeness
Unlike
With regard to the fitness of the issues for judicial decision, “pure legal questions that require little factual development are more likely to be ripe.” San Diego County, 98 F.3d at 1132. The Attorney General argues that plaintiffs’
The hardship prong of prudential ripeness “dovetails, in part, with the constitutional consideration of injury.” Thomas, 220 F.3d at 1142. It “requires looking at whether the challenged law ‘requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance.‘” Tingley, 47 F.4th at 1070–71 (quoting Stormans, Inc., 586 F.3d at 1126).
3. Mootness
“A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of
“[A] defendant‘s ‘voluntary cessation of a challenged practice’ will moot a case only if the defendant can show that the practice cannot ‘reasonably be expected to recur.‘” F.B.I. v. Fikre, 601 U.S. 234, 241 (2024) (quoting Friends of the Earth, Inc. v. Laidlaw Env‘t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). This is a “formidable burden.” Id. (quoting Friends of the Earth, 428 U.S. at 190). “Were the rule more forgiving, a defendant might suspend its challenged conduct after being sued, win dismissal, and later pick up where it left off.” Id. Accordingly, “[t]o show that a case is truly moot, a defendant must prove ‘no reasonable expectation’ remains that it will ‘return to [its] old ways.‘”
The voluntary cessation rule “holds for governmental defendants no less than for private ones.” Id. The government is entitled to a presumption of good faith when it asserts mootness, but it “must still demonstrate that the change in its behaviоr is ‘entrenched’ or ‘permanent.‘” Fikre v. F.B.I., 904 F.3d 1033, 1037 (9th Cir. 2018) (quoting McCormack v. Herzog, 788 F.3d 1017, 1025 (9th Cir. 2015)). “[A] voluntary change in official stance or behavior moots an action only when it is ‘absolutely clear’ to the court, considering the ‘procedural safeguards’ insulating the new state of affairs from arbitrary reversal and the government‘s rationale for its changed practice(s), that the activity complained of will not reoccur.” Id. at 1039 (first quoting McCormack, 788 F.3d at 1025, then quoting Rosebrock v. Mathis, 745 F.3d 963, 974 (9th Cir. 2014)). Thus, “an executive action that is not governed by any clear or codified procedure cannot moot a claim.” McCormack, 788 F.3d at 1025; see also Rosebrock, 745 F.3d at 971 (“[A] policy change not reflected in statutory changes or even in changes in ordinances or regulations will not necessarily render a case moot.“).
This case is not moot despite the Attorney General‘s efforts to make it so. While plaintiffs’ motion for a preliminary injunction was pending, the Attorney General withdrew the Opinion Letter and characterized it as void solely on procedural grounds. He also repeatedly disclaimed any authority to enforce
B. Eleventh Amendment
Absent abrogation, the
The Attorney General contends he is not a proper defendant under Ex parte Young because he does not have authority to enforce
Idaho law sets out at least three avenues through which the Attorney General may assist county prosecutors. First, a county prosecutor may move for the trial court to appoint the Attorney General as a special prosecutor with “all the powers of the prosecuting attorney.”
The Attorney General argues that his authority to assist in the enforcement of
The same is true here. The Attorney General‘s authority to assist in the enforcement of
The Attorney General‘s attempts to distinguish Wasden on other grounds are unpersuasive. He points out that in Wasden there was no dispute that the Ada County prosecutor was “a proper defendant with regard to those provisions creating the potential for prosecution.” Id. at 919. Here, however, the district court has not yet determined whether it has jurisdiction over the county prosecutor defendants
The Attorney General also asserts there can be no enforcement connection for Ex parte Young purposes until there is a “live claim” against a county prosecutor and the prosecutor requests the assistance of the Attorney General in enforcing
The Attorney General is thus a properly named defendant under Ex parte Young.
C. The Preliminary Injunction
Having determined that the physician plaintiffs’
The district court granted the preliminary injunction on the merits. In its briefing to us, Planned Parenthood did not argue this point, but it asked this Court to affirm on the merits, urging us to “affirm the order of the district court granting . . . preliminary injunctive relief.”
Despite ample opportunity to do so, the Attorney General has not contested in our court the merits of the preliminary injunction. On appeal, he has relied only on the jurisdictional challenges discussed above. We take the failure to object on the merits to the district court‘s
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “A preliminary injunction is an extraordinary remedy never awarded as of right.” Id. (quoting Winter, 555 U.S. at 24). Alternatively, a preliminary injunction may issue where “serious questions going to the merits were raised and the balance of hardships tips sharply in plaintiff‘s favor” if the plaintiff “also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Id. at 1135. This reflects our circuit‘s “sliding scale” approach, in which “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Id. at 1131.
We agree with the district court that plaintiffs established a likelihood of success on their
The Attorney General‘s interpretation of
Because the physician plaintiffs have made out “a colorable
D. Reassignment
The Attorney General has asked that we assign this case to a different district judge. “We reassign only in ‘rare and
No “reasonable outside observer” could conclude that the district judge harbors personal bias against the defendants or that reassignment is warranted to preserve the appearance of justice. See id. at 1046. The Attorney General charges that the district judge ignored relevant materials, mischaracterized the record, and unfairly denied supplemental briefing. This charge is patently false. The thorough preliminary injunction order shows that the district judge carefully considered the record, the Attorney General‘s arguments, and the рarties’ timely filings. The compressed briefing schedule reflects the emergency nature of the relief plaintiffs requested. The decisions to deny supplemental briefing and reject untimely filings were well within the district judge‘s broad discretion to manage his docket.
Conclusion
We affirm the grant of a preliminary injunction and deny the request for reassignment.
AFFIRMED.
In this preliminary-injunction appeal, the Idaho Attorney General challenges the jurisdiction of the district court, but he expressly disclaims any challenge to the merits of the injunction. I agree that the Attorney General‘s jurisdictional arguments fail, so I join most of the court‘s opinion.
I do not join Section III.C, however, in which the court goes on to address the merits. In my view, we should confine ourselves to the issues presented by the parties and refrain from opining on constitutional questions that have not been briefеd and that are unnecessary to the resolution of this appeal. See United States v. Sineneng-Smith, 590 U.S. 371 (2020); Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).