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
