Summary
The Ninth Circuit affirmed the district court's grant of a preliminary injunction prohibiting the Idaho Attorney General from enforcing his interpretation of Idaho Code § 18-622(1) as prohibiting medical providers from referring patients across state lines for abortion services. The panel held that the physician plaintiffs had Article III standing, the case was ripe and not moot, and the Attorney General could be sued under Ex parte Young. Addressing the merits, the court found a likelihood of success on the plaintiffs' First Amendment claim, ruling that the Attorney General's interpretation constituted an impermissible content-based restriction on speech.
Topics
Practice areas
Questions Presented
- Whether the physician plaintiffs established Article III standing to bring a pre-enforcement First Amendment challenge.
- Whether the claims were constitutionally or prudentially ripe.
- Whether the Attorney General's withdrawal of the opinion letter mooted the claims.
- Whether the Attorney General had a sufficient enforcement connection to be sued for prospective relief under Ex parte Young despite the Eleventh Amendment.
- Whether the district court properly granted a preliminary injunction against enforcement of the statute under the Attorney General's interpretation.
- Whether the case should be reassigned to a different district judge.
Holdings
- The physician plaintiffs established injury-in-fact and Article III standing because they intended to engage in speech arguably proscribed by the statute and faced a credible, substantial threat of enforcement.
- The First Amendment claims were constitutionally and prudentially ripe.
- The withdrawal of the opinion letter did not moot the case because the Attorney General did not repudiate the statutory interpretation or establish that the challenged enforcement position could not reasonably recur.
- The Eleventh Amendment did not bar the suit because the Attorney General had a sufficient connection with enforcement of Idaho Code § 18-622(1) to be sued for prospective relief under Ex parte Young.
- The plaintiffs showed a likelihood of success on their First Amendment claim because the Attorney General's interpretation directly prohibited medical professionals from making out-of-state abortion referrals and imposed a content-based and viewpoint-based restriction on speech.
- The request to reassign the case to a different district judge was denied because the Attorney General did not show rare and extraordinary circumstances, personal bias, or an appearance-of-justice problem.
Key quotations
“The Letter effectively compelled the physician plaintiffs to self-censor, and it had a “direct and immediate effect” on their ability to provide information and referrals to patients in need of abortion services.” (122 F.4th at 839)
“The Withdrawal Letter, Opinion No. 23-1, and the Attorney General’s statements during the pendency of the litigation do not change the fact that absent an injunction the Attorney General remains “free to return to his old ways” and enforce § 18-622(1) as he interpreted it in his Opinion Letter.” (122 F.4th at 842)
“The Attorney General’s interpretation of § 18-622(1) in the Opinion Letter is a content-based restriction on speech because it silences healthcare providers on the specific topic of abortion.” (122 F.4th at 846)
Factual background
Idaho Code § 18-622 criminalizes performing or attempting to perform an abortion and imposes professional licensing penalties on health-care professionals who assist in performing or attempting to perform an abortion. In a March 2023 opinion letter, Idaho Attorney General Raul Labrador stated that the statute prohibited Idaho medical providers from referring patients across state lines to abortion providers or prescribing abortion pills for out-of-state pickup. Physicians who had provided or intended to provide out-of-state abortion information and referrals stopped doing so after the letter became public because they feared licensing penalties. Although the Attorney General later withdrew the letter as procedurally void, he did not repudiate its interpretation of the statute or provide an alternative interpretation.
Procedural history
Plaintiffs sued the Idaho Attorney General, county prosecutors, and members of the Idaho State Boards of Medicine and Nursing, alleging that the Attorney General's interpretation of Idaho Code § 18-622(1) violated the First Amendment, the Due Process Clause, and the Commerce Clause. The district court denied the motion to dismiss and preliminarily enjoined the Attorney General from enforcing the statute as interpreted in the opinion letter. The Attorney General appealed, challenging standing, ripeness, mootness, Eleventh Amendment issues, and requesting reassignment of the district judge; he expressly did not challenge the merits of the preliminary injunction.