UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LOURDES No. 23-3787 MATSUMOTO; NORTHWEST D.C. No. ABORTION ACCESS 1:23-cv-00323-DKG FUND; INDIGENOUS IDAHO ALLIANCE, OPINION Plaintiffs - Appellees,

v. RAUL LABRADOR, in his capacity as the Attorney General for the State of Idaho,

Defendant - Appellant.

Appeal from the United States District Court for the District of Idaho 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. 2 MATSUMOTO V. LABRADOR

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, Idaho Code § 18-623, and remanded for further proceedings. 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) * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MATSUMOTO V. LABRADOR 3

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 and 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