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Speech to Idaho Minors Urging Them to Get Legal Out-of-State Abortions Protected by First Amendment, Even When …
it's intended "to conceal the abortion from the minor's parents or guardian," holds a Ninth Circuit panel. But the panel rejects a challenge to restrictions on "harboring" or "transporting" the minor under such circumstances.
From yesterday's decision in Matsumoto v. Labrador, written by Ninth Circuit Judge Margaret McKeown and joined by Judge John Owens:
This case concerns a unique legislative undertaking: an "abortion trafficking" statute. Idaho Code § 18-623. Idaho defines the crime of "abortion trafficking" as "procur[ing] an abortion" or "obtain[ing] 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. This provision appears to be the first post-Dobbs statute to criminalize the act of helping another person obtain an abortion, even if that abortion is legal in the state where it occurs….
[We conclude that] the statute's provision on "recruiting" violates the First Amendment by prohibiting "a substantial amount of protected speech relative to its plainly legitimate sweep." … [But we conclude that] the prohibition of "harboring and transporting" … 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….
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 Section 18-623 and traditional trafficking statutes. To begin, traditional human trafficking statutes typically apply to coercive conduct and/or the facilitation of universally illegal purposes. In contrast, Section 18-623 criminalizes non-coercive as well as coercive conduct for the procurement of legal abortions—for instance, performed in Oregon or Washington—as well as illegal ones. The term "trafficking," whether of humans or otherwise, is also usually defined with respect to an illegal trade with economic motive. In contrast, Section 18-623 does not contemplate any type of trade or economic motive….
[A.] Void-for-Vagueness Challenge
… Section 18-623, despite its awkward construction, does not fall afoul of the vagueness line. Certain conduct is either clearly proscribed by the statute, such as providing transportation and shelter to minors seeking abortions in other states; clearly not proscribed by the statute, such as soliciting donations to organizations that support pregnant minors seeking abortions; or, in the case of conduct that might be understood as "recruiting," is subject to an "imprecise but comprehensible normative standard."
The ordinary meaning of "recruiting," albeit broad, is sufficiently clear, such that we cannot say that Section 18-623 "specifie[s]" "no standard of conduct … at all." Even in a novel context, different from conventional "trafficking," the ordinary meaning of "recruiting" is plain. In determining vagueness, we look to the words of the statute, not the moniker that the state legislature gives the statute.
We see no inconsistency in treating "recruiting" as a comprehensible standard, even if that standard impermissibly sweeps in a broad swath of protected speech, as discussed below. A statute that is not constitutionally vague may still be overbroad under the First Amendment.
[B.] First Amendment Challenge—Right of Association
Section 18-623 does not limit Challengers' ability to solicit donations, require them to unmask their anonymous members, impinge on the anonymity of their donors, or inhibit their general advocacy of the right to abortion in Idaho or elsewhere. Idaho is not forcing anyone to refrain from supporting or joining these organizations. It is not requiring individuals or the organizations to join a group they otherwise would eschew. It does not limit their ability to provide information, support, guidance, and options counseling to pregnant adults in Idaho. Challengers' associational arguments do not provide an additional basis to enjoin Section 18-623 on First Amendment grounds….
[C.] First Amendment Challenge—Speech
[W]e construe the statute to cover abortion procurement for a minor in Idaho that involves recruiting or harboring or transporting, and we treat these alternatives separately….
[1.] "Harboring" and "Transporting"
There is no serious confusion regarding what conduct constitutes "harboring" or "transporting" within the meaning of Section 18-623. Dictionaries define "harbor" as giving "shelter" or "refuge" to someone, including those who might be evading law enforcement or who need protection. Meanwhile, "transport" denotes carrying or conveyance of something or someone from one place to another. 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 that the bulk of "harboring" or "transporting" acts covered by the statute are expressive. {We offer no opinion on whether Challengers could succeed on an as-applied challenge to these provisions [under particular circumstances].
[2.] "Recruiting"
Because neither the "harboring" nor the "transporting" provision supports a facial First Amendment challenge to Section 18-623, this appeal turns on the meaning of the word "recruiting" within Section 18-623…. 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….
Idaho endeavors to limit the statute's scope by asserting simply that "providing information to minors" is not proscribed by Section 18-623. However, information—especially information trying to persuade a girl to have an abortion or regarding the provider, time, place, or cost of an available abortion—could satisfy the plain meaning of "recruit." And provision of that information to a minor in conjunction with procuring an abortion could well be a violation of Section 18-623 and subject an individual to criminal liability.
The statute contains the following limiting language: "the terms 'procure' and 'obtain' shall not include the providing of information regarding a health benefit plan." This narrow exclusion leaves wide open the fate of information not circumscribed by a "health benefit plan." For instance, Challenger Matsumoto would like to continue "provid[ing] advice on how pregnant people, including minors, can legally access [a]bortions," "provid[ing] information and options counseling to … pregnant minors, about abortion," and giving advice and support to organizations that assist pregnant minors who are survivors of domestic violence and sexual assault. The Indigenous Idaho Alliance would like to continue providing "pregnant people, including minors, with reproductive health care information, including information about abortion." The Northwest Abortion Access Fund would like to continue providing "emotional … and informational assistance" to pregnant minors. Any of these activities could arguably satisfy the plain meaning of "recruiting" and, coupled with "procuring" or "obtaining" an abortion, put individuals and organizations at risk of criminal penalties.
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 abortion." 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 procedures for under-resourced people, including minors, or setting up doctors' appointments for abortions and broadcasting the availability of those appointments to minors.
Like the parties, Amici express concerns that "recruiting" will encompass financial support and logistical assistance. They contemplate what Section 18-623 means to an individual who "financially supported … women who need help travelling out-of-state to obtain an abortion," as well as to advocates who assert a desire to continuing working "with people, including young people, to overcome the financial and logistical obstacles that prevent people from getting the abortions they need and want."
Legal advice, too, might constitute recruiting under Section 18-623, even if that advice persuades a minor to obtain a legal abortion. One organization, If/When/How: Lawyering for Reproductive Justice, "provides direct legal services … to ensure that young people have the legal rights and resources they need to make important decisions about their reproductive wellbeing. Through its national helpline, the organization provides legal information, advice, representation, and lawyer referrals to young people seeking access to abortion care."
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 desperate, 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 Section 18-623, the driver might be prosecuted for "recruiting." The driver's expression invited contact, causing the minor to approach and find out how to get a legal abortion. The bumper sticker, and perhaps the offer of cash, arguably persuaded or even induced the minor to have the abortion. The cash also paid for, or "procured," the abortion. Thus, the driver procured an abortion for the minor, in part by recruiting. Under Section 18-623, the adult need only have "the intent to conceal an abortion" from the parents. No similar intent to conceal applies to "recruitment"; the bumper sticker, or a sign, or a pamphlet, can be out in the open for all to see and yet serve as a hook for prosecution.
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 a 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 examples may be an effort to persuade a minor to consider an abortion, but in neither case did the adult procure an abortion for a minor. Even if the pamphleteer were stationed at the entrance of a high school, and a pregnant minor, upon seeing the information contained in the pamphlet, independently drove across the border to obtain an abortion, the pamphleteer would not have procured that abortion.
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 Section 18-623. The same could be said of an employee of an advocacy organization counseling a minor about her healthcare options, providing the minor with the contact information of a partner organization in a neighboring state that can provide logistical or financial assistance in procuring or obtaining an abortion, and promising to keep the conversation a secret from the minor's parents.
These plain language applications of "procur[ing] … by recruiting" underscore that the statutory language covers a wide array of speech and conduct. Idaho's efforts to limit the reach of Section 18-623 are not consistent with the plain meaning of the statute. Ultimately, "[w]e may not uphold the statutes merely because the state promises to treat them as properly limited."
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. 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."
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 [citing cases protecting anti-abortion speech]. This protection includes promotion and urging of particular actions. Even if speech induces a particular course of action, the speech is protected as long as that action is not illegal. U.S. v. Hansen (2023) [a case that concluded that speech soliciting specific illegal action is constitutionally unprotected -EV]. "I think you should get a legal abortion in Washington," or "we believe in and fund legal abortions"—these, too, are protected expressions.
{Consider, for example, the statements of a representative from a crisis pregnancy center during the Senate committee hearing on Section 18-623. In her testimony in support of the bill, she described a scenario not unlike one that Challengers might face: A pregnant minor comes to the center, scared, perhaps afraid to tell her parents, and looking for guidance, and the representative provides that guidance, but only in support of continued pregnancy. Giving advice to a pregnant minor is legal and presumably protected expression in Idaho—even without informing the minor's parents and obtaining their consent—if that advice is directed toward advising that minor to carry her pregnancy to term. But under Section 18-623, advice arguably becomes illegal "recruitment" when it offers an abortion—critically, including a legal abortion in another state—as an option.}
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 (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. 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."
Public advocacy and education campaigns on issues of public interest are also protected political speech. This includes advocacy campaigns that encourage minors to consider the full range of available reproductive health care options.
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]." "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." 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 (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. (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., Idaho Code § 18-622 (criminalizing nearly all abortions in Idaho). In recognition of the Supreme Court's decision in Dobbs, we assume without deciding that Section 18-622 is a valid criminal statute. Thus, "recruiting" under Section 18-623, to the extent that it induces a minor to violate Section 18-622 via the adult's procurement of abortion for that minor, would be speech integral to criminal conduct.
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.
Bigelow. To qualify as speech "integral to unlawful conduct," the speech must be done in furtherance of the commission of an underlying criminal offense. Hansen. A legal abortion—whether performed in Idaho, under an exception to Section 18-622, or in another state—is not a criminal offense and so cannot serve as the "underlying offense" to render otherwise protected speech unprotected.
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." Both that opinion and the statute in question referenced separate, non-expressive activity that was illegal, independent of the inducement thereof. See 18 U.S.C. § 2422(b) (criminalizing inducement of others' engagement "in prostitution or any sexual activity for which any person can be charged with a criminal offense"). The Supreme Court addressed a similar point in United States v. Williams: speech may be criminalized where it is "intended to induce or commence illegal activities"—that is, independent activities that are illegal.
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 Idaho Code Section 18-623. In a case where the adult procures a legal abortion by recruiting the minor, but not by harboring or transporting the minor, there is no underlying offense but the recruitment itself. To the extent that such recruitment is protected speech, it cannot serve to self-invalidate. Labeling protected speech as criminal speech cannot, by itself, make that speech integral to criminal conduct….
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 care and abortion access. It is not difficult to conclude from these examples that the statute encompasses, and may realistically be applied to, a substantial amount of protected speech. Whether that protected speech is assessed against all activities covered by the individual "recruiting" component, or benchmarked against the statute as a whole, it is substantial in proportion. We therefore hold that the statute is unconstitutionally overbroad….
Judge Carlos Bea concurred in the judgment in part and dissented in part, on standing and redressability grounds.
