Idaho enacted Section 18-623, defining the crime of 'abortion trafficking' as procuring an abortion or obtaining an abortion-inducing drug for an unemancipated minor by recruiting, harboring, or transporting the minor with the intent to conceal the abortion from the minor's parents. Plaintiffs, including an attorney and two advocacy organizations, sought to counsel minors and provide material support to access legal abortions in other states. They argued the statute was void for vagueness and violated their First Amendment rights to speech and association. The district court granted a preliminary injunction against the entire statute. The Ninth Circuit reviewed whether the plaintiffs had standing to sue the Attorney General and whether the statute's provisions violated the First Amendment.
The panel first established that the plaintiffs had standing and that the Idaho Attorney General was a proper defendant under Ex parte Young, as the statute granted him sole discretion to prosecute if county prosecutors refused. On the merits, the court analyzed the three terms in the statute separately. It found that 'harboring' and 'transporting' refer to physical conduct that is not expressive on its face and therefore do not violate the First Amendment. However, the court held that 'recruiting' is unconstitutionally overbroad. The ordinary meaning of 'recruiting' includes seeking to persuade or induce someone to participate in an endeavor. The court reasoned that this definition sweeps in a substantial amount of protected speech, such as counseling, providing financial assistance, offering logistical support, and disseminating information about legal abortion options. The court rejected the argument that this speech was integral to criminal conduct, noting that the statute criminalizes procuring legal abortions in other states, which are not crimes. Consequently, the 'recruiting' prong cannot be saved by severing it from the rest of the statute's legitimate sweep. The court also rejected the void-for-vagueness and associational rights claims.
The 'recruiting' prong of Idaho Code § 18-623 is preliminarily enjoined and cannot be enforced by the Attorney General. The 'harboring' and 'transporting' prongs remain enforceable against non-expressive conduct. The case is remanded to the district court to modify the preliminary injunction to reflect this partial affirmation and reversal. The statute remains in effect for conduct that does not involve protected speech, but the specific provision criminalizing 'recruiting' is severed pending further proceedings.
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