Speech to Idaho Minors Urging Them to Get Legal Out-of-State Abortions Protected by First Amendment, Even When …
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 ‘proc
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