[00:00:00] Speaker 04:
Good morning, your honors.

[00:00:01] Speaker 04:
May it please the court?

[00:00:02] Speaker 04:
Josh Turner on behalf of General Labrador.

[00:00:06] Speaker 04:
I'd like to reserve four minutes for rebuttal, if I may.

[00:00:08] Speaker 04:
Very well.

[00:00:09] Speaker 04:
After Washington State and Oregon removed informed consent protections for minors, legally authorized abortions without parental consent, and marketed their unfettered abortion access to out-of-staters, Idaho passed the Abortion Trafficking Statute to protect parents and minors.

[00:00:24] Speaker 04:
The law is narrow and, what wouldn't think, unobjectionable.

[00:00:27] Speaker 04:
It prohibits strange adults

[00:00:29] Speaker 04:
from recruiting, harboring, or transporting unemancipated minors within Idaho to procure an abortion, but only when that act is done with the specific intent to conceal it from the unemancipated minors' parents or guardians.

[00:00:43] Speaker 04:
The act plainly prohibits conduct, not protected First Amendment activity.

[00:00:48] Speaker 04:
After all, no one has a First Amendment right to recruit, harbor, or transport unemancipated minors for any purpose against their parents' wishes.

[00:00:57] Speaker 04:
That is true whether we are talking about trafficking minors to obtain abortion,

[00:01:02] Speaker 04:
conversion therapy, or a religious experience.

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And it is especially true for serious medical procedures like abortions.

[00:01:10] Speaker 04:
Plaintiffs mistakenly assume that a course of conduct becomes immunized from state law just because it is combined with elements of speech or expressive conduct.

[00:01:20] Speaker 04:
But the Supreme Court has consistently said the opposite for over 100 years.

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That's why in Schenck, the court held that leafletting was unprotected when combined with unlawful conduct.

[00:01:31] Speaker 04:
In Gibney and Cox, the court held that peaceful picketing was unprotected because of its unlawful purpose.

[00:01:37] Speaker 03:
Let me jump in just with a few questions.

[00:01:40] Speaker 03:
The first one is that the word trafficking is used.

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And I was a prosecutor for a long time.

[00:01:47] Speaker 03:
And so I was familiar with narcotics trafficking, arms trafficking, human trafficking.

[00:01:53] Speaker 03:
In this context, I just want to make sure when we use the word trafficking, the statute's not talking about selling kids to have abortions, correct?

[00:02:01] Speaker 04:
No, not selling.

[00:02:02] Speaker 04:
But it is using trafficking in the same sense that other human trafficking statutes use trafficking, which is the movement of persons.

[00:02:09] Speaker 04:
That's why the recruit, the harbor, the transportation verbs are being used, which is consistent across all trafficking statutes.

[00:02:15] Speaker 03:
I just want to make sure, though, because normally trafficking involves something for profit.

[00:02:20] Speaker 04:
Not necessarily.

[00:02:21] Speaker 04:
It does, but not always.

[00:02:23] Speaker 04:
And so trafficking a minor under federal criminal prohibitions for underage sex does not necessarily involve a profit element.

[00:02:32] Speaker 03:
Well, I agree.

[00:02:33] Speaker 03:
It doesn't always, but I think almost always.

[00:02:37] Speaker 03:
It does.

[00:02:38] Speaker 03:
It doesn't really.

[00:02:40] Speaker 04:
Well, to your point, Your Honor, this is what the Supreme Court addressed in the Williams case with the child pornography.

[00:02:47] Speaker 04:
And the argument there was, well, under a commercial speech aspect, maybe there is a prohibition that is justified.

[00:02:54] Speaker 04:
But the mere possession of child pornography without any profit motive falls under the First Amendment.

[00:03:00] Speaker 04:
The court rejected that.

[00:03:01] Speaker 04:
And so I don't think that the profit element or the lack of it is.

[00:03:06] Speaker 03:
I agree.

[00:03:06] Speaker 03:
I just want to make sure, because the word trafficking is used a lot.

[00:03:09] Speaker 03:
And from my world, that meant a certain thing.

[00:03:12] Speaker 03:
And I understand your argument that trafficking in this context means something a little bit different.

[00:03:17] Speaker 03:
But here's my main question I want to ask you, is that the word recruit is used.

[00:03:21] Speaker 03:
And again, I'm familiar from the alien smuggling cases and the sex trafficking cases.

[00:03:27] Speaker 03:
I worked on what that means.

[00:03:29] Speaker 03:
In this context, I know what they're gonna say, so I wanna give you a chance to address it.

[00:03:33] Speaker 03:
They're gonna say, look, if I am a lawyer and I give a speech or I write a book,

[00:03:39] Speaker 03:
About how someone who's underage could potentially get to Washington or get to a different state I could be prosecuted under the statute Can you talk to us about whether that is am I right and that's okay, or if I'm wrong?

[00:03:53] Speaker 03:
Why am I wrong?

[00:03:53] Speaker 03:
What does recruit mean as far as you're concerned?

[00:03:56] Speaker 04:
So that's absolutely wrong because of the specific intent element and because of the common-sense camera cannon and

[00:04:02] Speaker 04:
Nacitoros Asocius, which in turn is known by its neighbors.

[00:04:07] Speaker 04:
So recruit has to be understood in the context, number one, that it's a criminal statute with a specific intent element, and number two, in association with its neighboring verbs of harbor and transport.

[00:04:17] Speaker 01:
And for recruit- Let me stop you there.

[00:04:19] Speaker 01:
Each of those is an independent ground for prosecution, correct?

[00:04:26] Speaker 04:
Absolutely right, Your Honor.

[00:04:26] Speaker 01:
So you can bring somebody into your house, you're harboring them.

[00:04:31] Speaker 01:
You put them in your car, you drive them to Washington, Montana, Oregon.

[00:04:36] Speaker 01:
You're transporting them.

[00:04:39] Speaker 01:
So I'm having some trouble understanding recruitment as being cousin to those very specific type of conduct that we understand quite well.

[00:04:48] Speaker 01:
Recruit is a different matter.

[00:04:50] Speaker 04:
Yeah, I don't think so, because for a couple of reasons.

[00:04:53] Speaker 04:
First, I mean the canon, nasitor a socius, means by definition that it is going to be understood in context to its neighboring verbs.

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Not necessarily that those neighboring verbs are part and parcel of recruit, and

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In human trafficking statutes and any trafficking statute, the term recruit is commonly understood as the first act in the trafficking conduct.

[00:05:16] Speaker 04:
You need to recruit somebody and list them before you can harbor them, before you can transport them.

[00:05:21] Speaker 04:
That's why it comes first.

[00:05:22] Speaker 04:
And that's why every single statute that prohibits any type of trafficking uses the term recruit.

[00:05:27] Speaker 04:
And so if plaintiffs are right here, that casts a First Amendment pall over every

[00:05:33] Speaker 04:
human trafficking statute.

[00:05:34] Speaker 04:
And they don't have an answer to that.

[00:05:35] Speaker 04:
I encourage you to ask them, what does this do for every federal and state human trafficking statute that uses the term recruit and does not define it?

[00:05:44] Speaker 04:
Because I think they put a lot of weight on, it's not defined, therefore it's vague, therefore it's overbroad.

[00:05:49] Speaker 04:
But that doesn't address that none of these statutes define recruit.

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And all of them use that verb in that sequence.

[00:05:55] Speaker 01:
Let me put it in more practical terms.

[00:05:57] Speaker 01:
I have a couple of things in mind.

[00:06:01] Speaker 01:
The organization erects a huge billboard at the border between Washington and Oregon, and it says something to the effect of, scared and pregnant, call us absolute confidentiality.

[00:06:17] Speaker 01:
We would tell no one, including your parents.

[00:06:21] Speaker 01:
Is that recruiting?

[00:06:23] Speaker 04:
No, I don't think so for a couple of reasons.

[00:06:26] Speaker 04:
First, you have to have a specific intent element, not a general intent to conceal.

[00:06:30] Speaker 04:
It has to be specific to the minor's parents.

[00:06:32] Speaker 04:
So a minor has to come to you, and you have to specifically intend to conceal it from that minor's parents.

[00:06:38] Speaker 01:
OK, so now I'm going to take you there.

[00:06:40] Speaker 01:
Now we're either in a Planned Parenthood or a clinic or at school, and the minor comes in.

[00:06:48] Speaker 01:
And she says, I'm pregnant.

[00:06:51] Speaker 01:
I want to get an abortion.

[00:06:53] Speaker 01:
I know I'll be kicked out of the house.

[00:06:54] Speaker 01:
I am afraid to tell my parents.

[00:06:58] Speaker 01:
The individual then says, not about the health plan, but you can get an abortion legally in these locations.

[00:07:06] Speaker 01:
We will not tell your parents anything.

[00:07:09] Speaker 01:
Specifically, I'm assuring you that your parents will not learn about this conversation.

[00:07:16] Speaker 01:
So here's what you need to do.

[00:07:18] Speaker 01:
If you want to get another person is not going to do the transporting.

[00:07:23] Speaker 01:
I'm not going to give them shelter on the way to Washington, but it's just saying, here's the exact- Will it connect them with a group that would do that?

[00:07:31] Speaker 01:
That's where, and I ask that because- Let me just, we'll go in stages.

[00:07:34] Speaker 01:
Yeah.

[00:07:35] Speaker 01:
Okay, I really do appreciate the question.

[00:07:37] Speaker 01:
So at this point, we're in the office, school, health clinic, or whatever, and we're basically saying, this is what you need to do.

[00:07:47] Speaker 01:
These are

[00:07:49] Speaker 01:
the states where it's legal to join your state of Idaho, and these are organizations that make it available.

[00:07:59] Speaker 01:
And I will not tell anyone about this, including your parents, and specifically not your parents, because I know you're scared to death about that.

[00:08:08] Speaker 01:
Is that recruiting?

[00:08:11] Speaker 04:
that may be recruiting if there is a connection to the organizations.

[00:08:14] Speaker 04:
But there's another part of the statute that we haven't talked about, which requires that the person being charged have procured the abortion.

[00:08:22] Speaker 01:
Well, OK.

[00:08:23] Speaker 01:
That's why I want to understand, because I did go through your briefs to try to understand what recruitment meant.

[00:08:28] Speaker 01:
And I have to say there's about 20 different definitions offered by the state of Idaho, by counsel.

[00:08:36] Speaker 01:
Well, it could be this, it could be that.

[00:08:37] Speaker 01:
So I'm trying to get an understanding.

[00:08:39] Speaker 01:
At this point,

[00:08:41] Speaker 01:
everything we've talked about, would that be recruitment?

[00:08:44] Speaker 01:
Because there would be an intent to conceal from the parents.

[00:08:48] Speaker 01:
There would be recruitment potentially.

[00:08:54] Speaker 01:
Do you need to procure the abortion?

[00:08:56] Speaker 01:
What about these inchoate crimes of accomplice liability or whatever?

[00:09:00] Speaker 04:
Sure.

[00:09:00] Speaker 04:
And so like aiding and abetting, the recruitment harbor.

[00:09:04] Speaker 04:
Correct.

[00:09:04] Speaker 04:
Yeah.

[00:09:04] Speaker 04:
And I think what your questions are getting to is the underlying policy decision that Idaho has made here, which is, is it unlawful conduct

[00:09:12] Speaker 04:
to recruit, harbor, and transport minors for any purpose without their parents' consent.

[00:09:18] Speaker 04:
And here, the focus is on abortion, to be sure.

[00:09:20] Speaker 04:
But other statutes are focused on other things.

[00:09:22] Speaker 01:
I'm only worried about abortion because that's the only statute that's in front of us.

[00:09:26] Speaker 01:
But the decision.

[00:09:27] Speaker 01:
Would you go back and answer my question so we can go to your next phase?

[00:09:31] Speaker 01:
And that is, is the scenario I described recruitment?

[00:09:39] Speaker 04:
As I understand it, if there is a connection between a specific minor who is unemancipated, that means under their parents' custody, and an organization that is going to harbor and transport that child to receive an abortion, then yes, that could be recruitment if it's combined with a specific intent element.

[00:09:56] Speaker 04:
But that's conduct we're talking about, not speech.

[00:09:58] Speaker 01:
Wait, wait, wait.

[00:09:59] Speaker 01:
So you need, you're saying it has to be connected to harboring or transporting?

[00:10:08] Speaker 04:
Yes, that's the traffic.

[00:10:09] Speaker 04:
Those three verbs are connected because... But why does it say or?

[00:10:15] Speaker 04:
Because any one of them on its own, like if you don't participate in driving the minor, but you recruited the minor to be driven, to be harbored, to ultimately receive the abortion.

[00:10:25] Speaker 04:
I mean, that's how trafficking works.

[00:10:26] Speaker 04:
Just because you're in one link in the chain doesn't mean that you're necessarily immunized.

[00:10:30] Speaker 01:
I'm very familiar with human trafficking in particular.

[00:10:32] Speaker 04:
And I think that's a really good analog, Your Honor, to consider.

[00:10:35] Speaker 01:
And just because we're talking about a- But you still haven't answered why it needs to be linked.

[00:10:40] Speaker 01:
They often are linked, but it could be nothing comes of it.

[00:10:43] Speaker 01:
The child goes home.

[00:10:45] Speaker 01:
has second thoughts, goes to another clinic where they say, don't have an abortion, says, OK, I'm not going to do that.

[00:10:51] Speaker 04:
Well, then an abortion hasn't been procured, and there's no violation of the statute.

[00:10:54] Speaker 01:
That's right.

[00:10:55] Speaker 01:
So that could happen.

[00:10:56] Speaker 01:
But I still have the child in the office here.

[00:11:01] Speaker 01:
And the person giving the advice has done nothing more than give that advice that I've just talked about.

[00:11:10] Speaker 01:
So we don't have yet any harboring or transporting.

[00:11:14] Speaker 01:
and we have only recruitment.

[00:11:18] Speaker 01:
potential recruitment.

[00:11:19] Speaker 01:
I'm really trying to understand from your point of view.

[00:11:23] Speaker 04:
And I think it's a mistake.

[00:11:24] Speaker 04:
And it's wrong.

[00:11:25] Speaker 04:
And it's what plaintiffs urge the court to do is read recruit outside of the context of the statute.

[00:11:31] Speaker 04:
And that can't be done.

[00:11:32] Speaker 04:
It's a criminal statute that's prohibiting a course of conduct.

[00:11:35] Speaker 04:
And recruitment is one part of that course of conduct.

[00:11:38] Speaker 04:
It may alone be sufficient if that is your only part in the course.

[00:11:42] Speaker 01:
So when would it be in itself alone sufficient?

[00:11:47] Speaker 04:
I'm saying if you only were on the recruitment side of it, your job in the trafficking, whether we're talking about abortion trafficking or human trafficking, is to enlist humans to be harbored and transported, then yeah, you're not immune from the statute just because you didn't do the harboring or the transporting.

[00:12:04] Speaker 04:
Likewise for harboring.

[00:12:05] Speaker 04:
If you didn't do the recruitment and you didn't do the transporting, but you're holding the child.

[00:12:10] Speaker 01:
Right.

[00:12:10] Speaker 01:
See, I guess I'm having trouble with this argument because you're

[00:12:15] Speaker 01:
linking, you're saying instead of or, you're saying and.

[00:12:20] Speaker 01:
That's where I'm having trouble with your linking always.

[00:12:23] Speaker 01:
And I understand what a human trafficking ring looks like.

[00:12:25] Speaker 01:
I understand in general what human trafficking could be.

[00:12:29] Speaker 01:
I don't think that trafficking is kind of the right word.

[00:12:33] Speaker 01:
It's only in part two.

[00:12:34] Speaker 01:
If I'm really looking at part one of the statute to try to figure out, if I'm a prosecutor and I'm trying to charge somebody, I can charge them with

[00:12:45] Speaker 01:
recruiting under subsection one, correct?

[00:12:48] Speaker 04:
I think this is the Hanson case.

[00:12:50] Speaker 04:
It came out of the Ninth Circuit and was reversed by the Supreme Court that made the same mistake.

[00:12:55] Speaker 04:
It looked at, encouraged, and induced acontextually.

[00:12:58] Speaker 04:
And the major correction by the Supreme Court was to say, no, you can't do that.

[00:13:01] Speaker 04:
You have to look at it in context of its surrounding verbs, its surrounding context, and the fact that it is a criminal statute with a specific intent element.

[00:13:09] Speaker 04:
It's the same here.

[00:13:10] Speaker 04:
Now, let me step back, because there's a big assumption going on here.

[00:13:13] Speaker 04:
And that is that this is speech or expressive conduct and not conduct that is validly prohibited.

[00:13:21] Speaker 01:
But you still haven't really answered my question, because I totally understand if I tell them to go get an abortion, illegal abortion in Idaho, that is integrally linked.

[00:13:31] Speaker 01:
with illegal conduct.

[00:13:33] Speaker 01:
I think it might be different if I'm talking about an abortion in a state where it's legal.

[00:13:38] Speaker 01:
So I'm just trying to unpack your big argument.

[00:13:42] Speaker 01:
And I'm trying to understand whether the scenario I gave you would

[00:13:51] Speaker 01:
submit someone to prosecution in Idaho.

[00:13:54] Speaker 04:
I think I answered your question.

[00:13:55] Speaker 04:
I'll be clear.

[00:13:55] Speaker 01:
And the answer is yes?

[00:13:56] Speaker 04:
And the answer is yes, if it is connected to the trafficking.

[00:14:00] Speaker 01:
But let me address something that you said that I think is- And the trafficking you say would be either transporter or harboring?

[00:14:06] Speaker 04:
To procure an abortion with the specific intent of concealing it from the minor's parents, yes.

[00:14:11] Speaker 01:
The other thing I saw in the briefs that were slightly varied answers is, do you need to actually

[00:14:22] Speaker 01:
have the abortion or do you only need to make arrangements for an abortion?

[00:14:29] Speaker 04:
The abortion has to be procured or the abortion.

[00:14:32] Speaker 01:
What does that mean?

[00:14:33] Speaker 01:
And leaving the pill part aside.

[00:14:35] Speaker 04:
Yeah.

[00:14:35] Speaker 01:
What does that mean to procure an abortion?

[00:14:38] Speaker 04:
It means that the abortion is done, the child is terminated.

[00:14:41] Speaker 01:
OK.

[00:14:42] Speaker 03:
So if I could jump in on that.

[00:14:43] Speaker 03:
And don't worry so much about the time.

[00:14:45] Speaker 03:
We're going to give you, and for both sides, we're going to give you time to argue this one.

[00:14:49] Speaker 03:
You know, again, put a law enforcement hat on.

[00:14:52] Speaker 03:
Let's say we want to run a sting operation, because we think there's a group of people that are trying to recruit young women, young girls, girls to have abortions.

[00:15:02] Speaker 03:
And so we send in undercover officers dressed as high school girls.

[00:15:08] Speaker 03:
There was never going to be an abortion, but it was a sting operation.

[00:15:12] Speaker 03:
Could a sting operation be a violation of the statute?

[00:15:15] Speaker 04:
So I think you're getting to whether an attempt of violating the statute would violate the statute.

[00:15:21] Speaker 03:
Or conspiracy.

[00:15:21] Speaker 04:
Or conspiracy in solicitation.

[00:15:23] Speaker 04:
And yeah, I mean, I think this demonstrates, though, why this isn't in First Amendment territory.

[00:15:28] Speaker 04:
Because now we're just talking about conduct.

[00:15:30] Speaker 04:
And conduct can sometimes consist entirely of words, but it's still conduct.

[00:15:35] Speaker 04:
And so your question highlights a very important point, Your Honor, that they assume, plaintiffs assume, that everything that they want to say

[00:15:42] Speaker 04:
is protected First Amendment activity.

[00:15:45] Speaker 04:
But there's really a longstanding exception for speech that is intricately connected to conduct.

[00:15:50] Speaker 04:
And to Judge McKeown's point about the fact that an element of the conduct is perhaps not illegal on its own makes no difference.

[00:15:59] Speaker 04:
Many criminal statutes have elements that on their own would not be illegal.

[00:16:03] Speaker 04:
So the fact that the abortion being procured in a place where it is legal has no bearing on the First Amendment

[00:16:08] Speaker 03:
But back to my question then, because I'm just trying to understand what recruit means in this situation.

[00:16:14] Speaker 03:
If it's an Inquot crime, one that could, it was actually factually impossible to occur, would that be a violation of the statute?

[00:16:22] Speaker 04:
Well, I mean, because it's a criminal statute, there has to be a mens rea.

[00:16:26] Speaker 03:
And I really thought, like, I was someone, I was really hoping that this young woman, who I thought was 17, but she's actually 23.

[00:16:33] Speaker 03:
And I really wanted her to get in this car and drive to Oregon, even though she's 23, so she wouldn't fall under the statute.

[00:16:42] Speaker 04:
Yeah, and I think what you're describing is an attempt at violating 18.623.

[00:16:49] Speaker 04:
And that, you know, attempts often fall short of the consummation of the act.

[00:16:55] Speaker 03:
So what it in this case?

[00:16:56] Speaker 03:
I mean, you're often, again, I'm trying to understand what recruit means, and it helps me understand it if I know if it implies to sting operations and real operations.

[00:17:04] Speaker 03:
So to answer my question, the answer is it would not be a violation of the statute, or it would be?

[00:17:09] Speaker 04:
Well, are you saying that if somebody is engaged in enlisting minor girls?

[00:17:14] Speaker 04:
Yep.

[00:17:16] Speaker 04:
Who turn out not to be minors.

[00:17:18] Speaker 04:
Right.

[00:17:18] Speaker 04:
And they know, or there's proof that they are intending to procure an abortion, but for whatever reason, that turns out to be factually impossible.

[00:17:26] Speaker 02:
Correct.

[00:17:26] Speaker 04:
Is it a violation?

[00:17:28] Speaker 04:
Yes, it would still be a violation.

[00:17:30] Speaker 04:
Because you've got all of the traditional criminal law elements of intent.

[00:17:33] Speaker 04:
You just don't have consummation of the act.

[00:17:35] Speaker 04:
And that is not a defense under the statute.

[00:17:39] Speaker 01:
And so long as this clinic or school nurse counseling is done, but no abortion ever takes place, no criminal liability, yes or no?

[00:17:56] Speaker 04:
So if it's not an attempt, then no, if it's an attempt.

[00:18:00] Speaker 04:
And now we're arguing, what makes it an attempt, right?

[00:18:03] Speaker 04:
And I'm not trying to be cagey, but this is a question.

[00:18:07] Speaker 01:
What makes it an attempt?

[00:18:08] Speaker 01:
These are really legitimate.

[00:18:08] Speaker 01:
These incorporate parts of the statute and the application.

[00:18:11] Speaker 04:
And this isn't unique to, I mean, this particularly comes up with child pornography or soliciting a minor.

[00:18:18] Speaker 04:
This always happens.

[00:18:21] Speaker 04:
And I think this gets to something that I really want to talk about, and I know you've encouraged me not to be too worried about time, but the jurisdictional aspects here that make this case a very poor vehicle to address the First Amendment questions in the pre-enforcement context because of what plaintiffs say their conduct, the chilling that's going on with their conduct.

[00:18:43] Speaker 04:
I think if you look at all of the briefing and the declarations of the conduct that they want to engage in,

[00:18:49] Speaker 04:
I can comfortably stand up here and say, none of that is prescribed by the statute unless it is combined with the element of intending to conceal it from the parents.

[00:19:00] Speaker 04:
And I think their complaint and their declarations come short of that.

[00:19:04] Speaker 04:
Some of the organizations.

[00:19:05] Speaker 01:
We'll get to standing, but I don't want to completely leave the statute because I think that's the harder question here.

[00:19:12] Speaker 01:
I don't know that my colleague necessarily agrees.

[00:19:17] Speaker 01:
If there is a speech component of this that can be unlinked from conduct, and the speech component is here's how you can have an abortion, here's how you can terminate pregnancy, but of course it's nothing in this statute or elsewhere says that you can't go to some other

[00:19:38] Speaker 01:
Counseling Center where they say don't have an abortion Wouldn't that really doesn't amount to viewpoint discrimination?

[00:19:46] Speaker 01:
Because yeah, it's okay to tell somebody not to have an abortion But it's apparently not okay to tell them they should have an abortion

[00:19:52] Speaker 04:
Yeah, so on the content and viewpoint discrimination point, that really becomes relevant only if you get outside of the accepted First Amendment categories.

[00:20:02] Speaker 04:
So you have to first address that threshold question.

[00:20:04] Speaker 04:
And of course, our argument is that this is conduct.

[00:20:07] Speaker 04:
It's not speech.

[00:20:08] Speaker 04:
And just because speech combines with elements of conduct doesn't turn it into First Amendment protected activity.

[00:20:12] Speaker 04:
So the content neutrality and the viewpoint discrimination points

[00:20:16] Speaker 04:
I don't think you can get there because this is a traditionally accepted category that the Supreme Court has recognized for over 100 years.

[00:20:22] Speaker 04:
That's why the leafletting in Schenck, that's why the picketing in Gibney and Cox were unlawful on their own.

[00:20:30] Speaker 04:
Devoid of context?

[00:20:31] Speaker 04:
Sure, that's First Amendment protected activity.

[00:20:33] Speaker 04:
But when it was combined with an unlawful element, a purpose to, in the Gibney case, to compel or coerce an employer to do something that was illegal and a restraint of trade, then it becomes conduct, even though it contains elements of trade.

[00:20:49] Speaker 04:
It's the exact same scenario here.

[00:20:53] Speaker 01:
I'm well over my- Before you go to your last point, let me just ask you, if there were speech elements here that are not linked with conduct,

[00:21:00] Speaker 01:
and then we would get into the other First Amendment analysis.

[00:21:06] Speaker 01:
In your view, could the statute be severed if you were to drop the word recruit?

[00:21:15] Speaker 04:
So I think that there are obligations on this court to avoid constitutional issues and to save a statute from an unconstitutional reading.

[00:21:25] Speaker 04:
And if severing the word recruit is one way to do that, I think it's within this court's power, not just power, but duty to preserve the statute.

[00:21:34] Speaker 04:
Because I think we're in agreement, or it sounds like we're in agreement, I won't presume necessarily that harboring and transporting are clear conduct elements, and the recruitment is where the main rub is here.

[00:21:45] Speaker 01:
I think we're in agreement that that's a hard question.

[00:21:47] Speaker 03:
Yeah.

[00:21:47] Speaker 03:
Yeah.

[00:21:48] Speaker 03:
And I guess I'll just, I just want to follow up with this and, and then we'll, again, we'll give you time for rebuttal.

[00:21:52] Speaker 03:
Don't worry.

[00:21:53] Speaker 03:
Um, but when I see the word recruiting, I just want to make sure.

[00:21:55] Speaker 03:
So you're saying recruiting in this context does not mean educating or, or informing.

[00:22:01] Speaker 03:
That's the Thompson case, right?

[00:22:03] Speaker 04:
The Thompson case.

[00:22:05] Speaker 04:
I encourage you to ask how Thompson is distinguished out of the Second Circuit.

[00:22:09] Speaker 04:
It is a recruit harbor transport statute, and the court addressed the same overbreath type challenge and said no, and it was dealing with claims that religious organizations and charitable organizations that wanted to come alongside and help.

[00:22:23] Speaker 04:
victims of sex trafficking would have their speech chilled.

[00:22:27] Speaker 04:
And the court said, even if that is the claim, even if that activity would be chilled, there isn't a First Amendment right to engage in that activity when it falls under the recruit harbor transport elements.

[00:22:39] Speaker 04:
Now, I think, as I've said, what they've described they want to do, raise money, educate minors where you can receive an abortion, associate with others to do all of that, none of that is prescribed by the statute.

[00:22:53] Speaker 04:
If I can say one thing on the 11th Amendment, because I want to give Mike.

[00:22:58] Speaker 04:
Not too much on that one, but go ahead.

[00:23:01] Speaker 04:
Yeah.

[00:23:02] Speaker 04:
I think the important thing on the 11th Amendment is.

[00:23:05] Speaker 04:
that this looks exactly like what Ex parte Young meant to preclude.

[00:23:13] Speaker 04:
In order for the Ex parte Young fiction to apply, you've got to have a state official with the real power to prosecute under the statute.

[00:23:22] Speaker 04:
I won't get into the sole discretion too much, but I'll just say it's clear to me when you read this that the sole discretion is referring to

[00:23:30] Speaker 04:
the Attorney General's ability to prosecute once the triggering event has happened where there is no prosecutor or basically prosecutorial nullification by the county prosecutors.

[00:23:41] Speaker 04:
And here the complaint contains zero allegations that that is in fact the case.

[00:23:45] Speaker 04:
So under this court's clear, I'll just give you two quotes.

[00:23:49] Speaker 04:
In Jam Rule, this court said, for ex-party young to apply, a plaintiff must point to a threatened or ongoing unlawful conduct

[00:23:56] Speaker 04:
by a particular government officer.

[00:23:58] Speaker 04:
They can't do that here in Long v. VandeKamp.

[00:24:00] Speaker 01:
I don't think I've ever heard the state disclaim that it was going to enforce the statute, or the attorney general has never said, I'm not going to step in.

[00:24:10] Speaker 01:
Is that true?

[00:24:11] Speaker 04:
What we said is, we have no ability to step in and enforce a statute against these plaintiffs.

[00:24:16] Speaker 04:
Zero ability right now.

[00:24:17] Speaker 01:
Right, but you've never disclaimed that if a county prosecutor declined to prosecute, that the AG wouldn't step in.

[00:24:23] Speaker 04:
And I think if their allegations, if they could, under Rule 11, allege that there was prosecutorial nullification that would trigger the power of the Attorney General, then yes.

[00:24:31] Speaker 04:
But here's the connection I'll make and then I'll sit down.

[00:24:34] Speaker 04:
on redressability.

[00:24:36] Speaker 04:
I think there's a redressability problem.

[00:24:38] Speaker 04:
They say there's no redressability problem.

[00:24:41] Speaker 04:
Assuming arguing that there isn't, it demonstrates the expert again problem.

[00:24:45] Speaker 04:
Because if there isn't a redressability problem, in other words, they now are receiving real relief because the attorney general

[00:24:52] Speaker 04:
is enjoying from enforcing the statute.

[00:24:54] Speaker 04:
To me, it demonstrates that what they have done is enjoying the state and not the attorney general.

[00:24:59] Speaker 03:
All right, so now I'm going to ask you a question and then you can sit down.

[00:25:03] Speaker 03:
There's a case Planned Parenthood, Great Northwest, Hawaii, Alaska versus Labrador.

[00:25:08] Speaker 03:
That has 11th Amendment issues in it as well.

[00:25:10] Speaker 03:
Do we need to hold?

[00:25:12] Speaker 03:
Under your view of the 11th Amendment, don't we need to wait for that case to come down before we resolve this one?

[00:25:16] Speaker 04:
No, that case has 44 county prosecutors joined as defendants.

[00:25:21] Speaker 04:
Here, there is no county prosecutor joined.

[00:25:23] Speaker 04:
Very distinguishable, separate question.

[00:25:26] Speaker 03:
All right, we'll give you time for rebuttal.

[00:25:27] Speaker 03:
Thank you.

[00:25:39] Speaker 00:
I have to confess, Your Honor, I wasn't watching when I said move the podium.

[00:25:41] Speaker 00:
But I assume it's OK if I just move the microphones.

[00:25:44] Speaker 00:
Looks great.

[00:25:45] Speaker 00:
Sounds great.

[00:25:46] Speaker 00:
Thank you, Your Honors.

[00:25:47] Speaker 00:
Wendy Olson, Stor Reeves, LLP, along with Wendy Hyped from Legal Voice, and Paige Susley from the Lawyer in Project on behalf of plaintiffs, Lourdes Matsumoto, the Northwest Abortion Access Fund, and the Indigenous Idaho Alliance.

[00:26:03] Speaker 00:
Your Honor, plaintiffs in this case are an Idaho woman and two organizations that assist pregnant people, including pregnant minors, obtain abortion, and including in Idaho.

[00:26:15] Speaker 00:
They advise pregnant minors.

[00:26:17] Speaker 00:
They help them identify legal options for abortion care.

[00:26:21] Speaker 00:
And they provide financial and travel assistance.

[00:26:26] Speaker 00:
They know that Idaho has criminalized abortions.

[00:26:31] Speaker 00:
Plaintiffs do not seek to help pregnant people obtain unlawful abortions in Idaho.

[00:26:37] Speaker 00:
They seek to help pregnant people, including Idaho minors, obtain abortion care in states where it is lawful, including Idaho's neighbors to the west, Oregon and Washington.

[00:26:50] Speaker 00:
It is plaintiffs' position that Idaho Code 18623 unconstitutionally inhibits plaintiffs from providing this assistance.

[00:27:01] Speaker 00:
It seeks to criminalize an unclear amount of undefined assistance to minors, including information and travel assistance within Idaho.

[00:27:12] Speaker 00:
As the district court properly found, Idaho Code 18623 is a content-based regulation of protected speech and expression.

[00:27:22] Speaker 00:
It regulates protected speech and expression because it regulates only speech and expression that favors abortion.

[00:27:31] Speaker 00:
It prohibits plaintiffs from saying things that the state disagrees with.

[00:27:38] Speaker 00:
That, Your Honor, is the, I would submit, the signal that this is a content-based restriction that this court should analyze and subject to strict scrutiny.

[00:27:49] Speaker 00:
Significantly, Your Honor, for purposes of standing, after 18623 became effective, plaintiffs stopped exercising in Idaho what they believe are their constitutionally protected First Amendment rights because they are unsure of what communications, associations, and expressive conduct they can engage in.

[00:28:09] Speaker 00:
The statute states, and I would submit, Your Honors, that it's written a little unusually and not like the typical human trafficking or sex trafficking statute.

[00:28:18] Speaker 00:
And it says, an adult who with the intent to conceal an abortion from the parents or guardian of a pregnant unemancipated minor either procures an abortion, as described in a different section of Idaho code, or obtains an abortion-inducing drug for the pregnant minor to use for an abortion.

[00:28:36] Speaker 00:
And there's no comma after that abortion.

[00:28:38] Speaker 00:
And it says, by recruiting, harboring, or transporting the pregnant minor within this state commits the crime of abortion trafficking.

[00:28:46] Speaker 00:
And quite frankly, Your Honors, I'm not certain what procuring an abortion or obtaining an abortion by recruiting, harboring, or transporting or harboring means.

[00:28:57] Speaker 00:
It's unclear whether or how you would.

[00:29:01] Speaker 01:
Let's start with maybe what could be the easier construction, and that's transporting.

[00:29:07] Speaker 01:
So taking a minor, hiding from the parents that the organization is doing it,

[00:29:15] Speaker 01:
and transporting within the state of Idaho so that the person can get a legal abortion in an adjoining state.

[00:29:24] Speaker 01:
That's not clear?

[00:29:26] Speaker 01:
I mean, where is the speech in that?

[00:29:28] Speaker 00:
Your Honor, we would submit that the right of association is implicated by that transporting part.

[00:29:36] Speaker 00:
And with respect to these particular plaintiffs, their activities that they have engaged in historically and that are referenced in great detail in the declarations that were submitted or in the record, they make clear that they have done work historically to assist minors, to provide financial assistance, and travel assistance.

[00:29:57] Speaker 00:
And they do so to send a clear message, expressive conduct and association, that they support abortion care.

[00:30:03] Speaker 00:
They support minors who want to seek abortion care.

[00:30:07] Speaker 00:
And they engage in these activities with others who are engaged in that very same

[00:30:12] Speaker 00:
assistance type activity.

[00:30:14] Speaker 00:
So we would submit that in that respect, transporting, the transporting provision infringes on that First Amendment right to association, harboring and transporting.

[00:30:23] Speaker 01:
What if we were to disagree with you on the right of association aspect of your argument?

[00:30:28] Speaker 01:
How would transporting implicate the First Amendment?

[00:30:35] Speaker 00:
Well, Your Honor, I would submit that if you disagree on the association part of it, there may be an expressive conduct aspect of transporting.

[00:30:43] Speaker 00:
It is an act that expresses support for lawful abortion and lawful abortion in another state.

[00:30:51] Speaker 00:
And that's a message that is clearly understood by those in the community, by those who would seek their services.

[00:31:00] Speaker 00:
It's understood, certainly, by the state of Idaho, that that's what their expressive conduct is about.

[00:31:04] Speaker 00:
So if it's not association honor, we'd also admit that it shows expressive conduct.

[00:31:09] Speaker 01:
The focus that we had with your colleague really related to the word recruit and a lot of the briefing and argument related to that.

[00:31:21] Speaker 01:
What is it that you think is covered by the First Amendment that would be, specifically, that would be encompassed within recruit, given what you heard Attorney General argue today?

[00:31:37] Speaker 00:
Well, Your Honor would submit that both the example that you gave with respect to the billboard

[00:31:42] Speaker 00:
and to the conversation that occurs.

[00:31:44] Speaker 00:
Well, he says the billboard's okay.

[00:31:47] Speaker 01:
There's an idea.

[00:31:48] Speaker 01:
So if we move from the billboard to a more confidential setting.

[00:31:54] Speaker 00:
I think, Your Honor, that for speech to be protected, you don't have to have a large audience.

[00:31:59] Speaker 00:
It doesn't need to be on a billboard.

[00:32:01] Speaker 00:
It doesn't need to be in a courtroom of this size.

[00:32:04] Speaker 00:
But it is speech about a topic of public importance.

[00:32:07] Speaker 00:
And so I would submit that that is First Amendment covered speech, even when you're in that small setting with the individual.

[00:32:14] Speaker 01:
Well, I don't think they disagree with that.

[00:32:17] Speaker 01:
They would just say that that speech is integral

[00:32:21] Speaker 01:
because of the nature of your organization to the harboring and the transporting, and therefore you don't have a situation where the speech can be unlinked or de-linked from the conduct, and therefore

[00:32:35] Speaker 01:
that sinks the First Amendment claim.

[00:32:37] Speaker 01:
And I'd appreciate your response to that.

[00:32:39] Speaker 00:
Yes, Your Honor.

[00:32:40] Speaker 00:
Sorry, I think I misunderstood your question initially.

[00:32:43] Speaker 00:
But Your Honor, what we would submit is their argument for speech as integral to criminal conduct misses a very important point of the Supreme Court's analysis in United States versus Hanson.

[00:32:53] Speaker 00:
And so Hanson.

[00:32:56] Speaker 00:
focused on the terms encouragement and likened it to solicitation.

[00:33:00] Speaker 00:
But its focus was on the speech was about something that was ultimately an unlawful act.

[00:33:06] Speaker 00:
And in order for it not to be covered by the First Amendment, the Hanson Court said, the exception requires intentional encouragement of an unlawful act where the government seeks to exact criminal punishment for speech or communication.

[00:33:19] Speaker 00:
So it's speech about something that is unlawful.

[00:33:23] Speaker 00:
And Hanson Court also says, speech intended to bring about a particular unlawful act has no social value.

[00:33:29] Speaker 00:
Therefore, it is unprotected.

[00:33:31] Speaker 00:
And that's precisely the problem with the statute here, Your Honor, is they're not speaking about an unlawful act.

[00:33:37] Speaker 00:
They're speaking about a lawful act, abortion that is lawful in the place where it occurs.

[00:33:45] Speaker 01:
My colleague from the state's argument, do you think it would be possible to have the speech be protected

[00:33:52] Speaker 01:
in this confidential setting, and we aren't going to tell the parents.

[00:33:57] Speaker 01:
And therefore, the counselor, the nurse, whomever, couldn't be prosecuted for violation of the statute.

[00:34:06] Speaker 01:
But that somebody who transports the child could be prosecuted.

[00:34:10] Speaker 01:
Do you think they can be delined?

[00:34:13] Speaker 00:
If the speech had occurred in the clinic, and then the person in the clinic tells the person, I can connect you with, or connects them somewhere with someone who can transport them for the unlawful act,

[00:34:26] Speaker 00:
Yes, Your Honor, I think they can be delinked.

[00:34:29] Speaker 00:
I think, as Judge Owens indicated, these are separate ways that you can commit the crime or separate ways the statutes can be used.

[00:34:38] Speaker 00:
It's just like any criminal offense that you can commit through a different number of means.

[00:34:44] Speaker 01:
I think it could be delinked.

[00:34:46] Speaker 01:
At least the spin I heard this morning was a little different than I perceived in the briefs.

[00:34:50] Speaker 01:
And that was that the recruitment is integrally related with these other two words always.

[00:34:55] Speaker 01:
What's your response to that?

[00:34:58] Speaker 00:
Your Honor, that's simply not how I would read a criminal statute.

[00:35:00] Speaker 00:
But if the state wants to make it harder to prosecute a case, that's absolutely fine with plaintiffs and probably criminal defense attorneys.

[00:35:10] Speaker 00:
In Idaho, typically, and if you

[00:35:15] Speaker 00:
I think by his argument, Your Honor, that if they're not going to prosecute for the recruiting and it all has to be connected, then there's not been that initial element that's occurred and transporting isn't a violation either.

[00:35:27] Speaker 00:
But Your Honor, I would also submit this is different from what the state has argued below.

[00:35:31] Speaker 00:
I understand.

[00:35:33] Speaker 00:
The read on their statute is very different today than it was in the district court in their briefing.

[00:35:38] Speaker 01:
Well, you know, we're all familiar with a lot of these state and federal

[00:35:44] Speaker 01:
human trafficking, sex trafficking, labor trafficking statutes.

[00:35:48] Speaker 01:
And they all use this language, recruit, harbor, and transport.

[00:35:53] Speaker 01:
And yet you say that here, recruitment at least, is vague.

[00:35:59] Speaker 01:
Wouldn't that implicate, like literally, scores and scores of statutes that are in the human trafficking area?

[00:36:07] Speaker 00:
No, they wouldn't, Your Honor, because I think the void for vagueness case law indicates that you look at the terms within the context to determine whether or not they're vague, separate inquiry from directly whether it is speech protected by the First Amendment.

[00:36:20] Speaker 00:
And so here, Your Honor, where you have as an object of the activity

[00:36:25] Speaker 00:
procuring an abortion that's lawful in a state where it is lawful, what does it mean to recruit somebody or to procure by recruiting somebody?

[00:36:34] Speaker 00:
What does it mean to procure by transporting somebody?

[00:36:37] Speaker 00:
And I think that's where it's difficult to understand what those particular terms mean.

[00:36:42] Speaker 00:
And in fact, it's different from what my colleagues said this afternoon.

[00:36:46] Speaker 00:
It's different from what they said in front of the district court.

[00:36:49] Speaker 00:
And it's different from what the state legislature, who was one of the sponsors, said, where he said,

[00:36:55] Speaker 00:
Basically, we don't know what that means.

[00:36:57] Speaker 00:
Recruit, harbor, transport.

[00:36:58] Speaker 00:
We'll see what the court says about it.

[00:37:00] Speaker 00:
And that's precisely, then, the vagueness problem, Your Honor.

[00:37:02] Speaker 00:
I don't know how a person is supposed to wait until they're in front of the court to know what precisely they would need to do to violate a statute.

[00:37:09] Speaker 01:
It still kind of begs the question, though, because in these other statutes and leaving aside recruitment of adults, which usually have to be done by deceit, lack of consent, and various qualifiers,

[00:37:25] Speaker 01:
In the minor context, it's presumed that the minor cannot give consent and therefore recruiting a minor for a sexual activity or a labor activity is illegal.

[00:37:39] Speaker 01:
What's the difference between that and this statute which is saying recruiting a minor for an abortion is illegal?

[00:37:48] Speaker 00:
Well, I think, Your Honor, the difference is the end object of the recruiting, harboring, and transporting, which is here we're talking about abortion as a

[00:37:58] Speaker 00:
lawful in the states where people are being recruited, harbored, or transported to, Your Honor?

[00:38:05] Speaker 03:
Well, let me jump in with a hypothetical then.

[00:38:07] Speaker 03:
So let's assume that the state of Idaho has a consent law of 18 years old, but a bordering state has a consent law of 14 to engage in sexual relations.

[00:38:19] Speaker 03:
So Idaho passes a law saying, hey, look, we don't want our kids being recruited or harbored or transported to be sent to a state where they're 14 years old and they can marry.

[00:38:29] Speaker 03:
We don't think that's a good thing.

[00:38:33] Speaker 03:
We think it's better that kids wait till they're 18.

[00:38:36] Speaker 03:
So it's perfectly legal in the bordering state.

[00:38:41] Speaker 03:
You're saying in that situation that Idaho could not prevent that activity?

[00:38:46] Speaker 00:
Yes, Your Honor.

[00:38:47] Speaker 03:
No different.

[00:38:48] Speaker 00:
No different.

[00:38:49] Speaker 00:
And I would say, Your Honor, I point the court to, and I forget the exact federal criminal citation for this, but there is a statute that makes it unlawful to basically take someone

[00:38:59] Speaker 00:
across state lines to engage in sexual activity that's contrary to that state's laws.

[00:39:05] Speaker 00:
And that sounds like a very similar thing.

[00:39:07] Speaker 00:
So if you take somebody across state lines from Idaho into where I think the age is 16 into Nevada where

[00:39:15] Speaker 00:
there may be a different age.

[00:39:18] Speaker 00:
Maybe it's 18 and 16.

[00:39:19] Speaker 00:
But I don't think you could prosecute that statute if they end up in a state where the person is above the age of consent.

[00:39:25] Speaker 00:
And I think it would be a similar thing here.

[00:39:27] Speaker 00:
Once they get to the state where it's lawful, I think that you wouldn't be able to have this particular criminal statute.

[00:39:36] Speaker 01:
I'm trying to understand with some specificity what the plaintiff's argument is as to

[00:39:45] Speaker 01:
What aspects of their speech are protected and are not linked with illegal conduct?

[00:39:54] Speaker 00:
So, Your Honor, I think their position is all aspects of their speech are protected, as long as they're talking about where people have lawful abortion care options.

[00:40:05] Speaker 00:
I think if, for example, I guess to contrast that, Your Honor, or sorry, if they're transporting or harboring because we've argued that's expressive conduct or the First Amendment Right of Association.

[00:40:17] Speaker 01:
But if we disagree that transporting is expressive conduct and harboring is expressive conduct, so try to stick to recruit.

[00:40:27] Speaker 01:
Okay.

[00:40:27] Speaker 01:
I'm having, you know, we're trying to explore

[00:40:31] Speaker 01:
contours of the statute.

[00:40:32] Speaker 01:
So I don't know, but it just seems to me that there are distinctions between transporting, harboring, and recruitment.

[00:40:37] Speaker 01:
So stick to recruitment.

[00:40:39] Speaker 00:
Yeah, and I would agree, Your Honor.

[00:40:40] Speaker 00:
We definitely think that recruiting is the strongest case.

[00:40:42] Speaker 00:
It's the most clearly direct speech.

[00:40:44] Speaker 00:
But Your Honor, I think to answer your question, and I apologize if I don't get this right, having to sort of go back in my mind.

[00:40:50] Speaker 00:
But I think if they're speaking to someone in Idaho, and they're saying, look, you can actually go to Twin Falls, and there's a doctor there,

[00:41:00] Speaker 00:
who will perform an abortion for you, even though you're underage and it is illegal in Idaho, then I think perhaps under one of those other statutes, you could have aiding and abetting a violation of 18604, along with the doctor being prosecuted for, that's actually the abortion, 1622.

[00:41:18] Speaker 00:
for a violation of 18622.

[00:41:20] Speaker 00:
So I think that's the distinction, Your Honor.

[00:41:23] Speaker 00:
When they're having conversations with people to assist them find abortion care in a place where it's lawful, that's protected speech about a lawful activity, just as it would be protected speech about a lawful activity if you talk to someone about where they can go, for example, to get fireworks.

[00:41:41] Speaker 00:
Fireworks.

[00:41:43] Speaker 00:
If it's OK to get fireworks under the age of 18, I think some of those laws may differ as well.

[00:41:49] Speaker 01:
But when I asked the attorney general whether this counseling would violate the statute, he went pretty far to say it would not, but seemed to say, but of course, if you're also saying, and here's where you can

[00:42:08] Speaker 01:
get transported or here's where you could go for sanctuary or refuge, that that might be.

[00:42:16] Speaker 01:
So are you arguing that any kind of counseling in connection with getting a legal abortion is protected speech?

[00:42:30] Speaker 00:
Yes, your honor.

[00:42:31] Speaker 00:
And we would also argue, I think the court had a lengthy colloquy with my colleague about inchoate crimes and whether it would be an attempt or aiding and abetting.

[00:42:38] Speaker 00:
And I think it's pretty clear that from the argument, as I understood it from the attorney general today, from Mr. Turner, is that the person who

[00:42:48] Speaker 00:
engages in the conversation.

[00:42:50] Speaker 00:
If the minor later has an abortion, strike that.

[00:42:53] Speaker 00:
If it engages in that conversation and maybe finds someone to harbor or transport, then we might end up in a situation where they are prosecuted for an attempt, which is a mere step in furtherance of taking some act and showing that you have the same intent as having completed the crime.

[00:43:10] Speaker 01:
But previously, I had understood the attorney general, specifically Mr. Turner, but the attorney general's office to suggest the child had to have had the abortion or gotten the pill.

[00:43:28] Speaker 01:
But I'm hearing today that they're also saying that.

[00:43:32] Speaker 01:
So if you do lots of counseling, but that the child doesn't go through with it,

[00:43:40] Speaker 01:
it would seem that wouldn't fall under the statute.

[00:43:43] Speaker 01:
Is that your understanding?

[00:43:45] Speaker 00:
Well, Your Honor, it might be what Mr. Turner articulated today, but I don't think it's what they've said below.

[00:43:51] Speaker 00:
And I think that's one of the confusing parts about the statute, Your Honor.

[00:43:55] Speaker 00:
And it still doesn't really address, as a matter of law, the attempt issue.

[00:43:59] Speaker 00:
If your attempt is to, if you have provided the counseling

[00:44:03] Speaker 00:
And you have informed the minor where they can get a lawful abortion.

[00:44:09] Speaker 00:
And there is a place where you can get an abortion.

[00:44:14] Speaker 00:
And even if it's in another state, I would submit that under the law, that could be considered an attempt.

[00:44:21] Speaker 00:
And that's one of the concerns that plaintiffs have, Your Honor.

[00:44:24] Speaker 00:
I did not hear Mr. Turner say that the state of Idaho was disavowing its ability to prosecute inchoate crimes.

[00:44:31] Speaker 01:
What would the trial in this case look like since this is a preliminary injunction?

[00:44:36] Speaker 00:
The trial in this case for if we get back to the district court on the merits of this particular case?

[00:44:43] Speaker 00:
Yes.

[00:44:43] Speaker 00:
Yes.

[00:44:43] Speaker 00:
I think, Your Honor, it would involve additional testimony from the plaintiffs regarding the activity that they have engaged in up to a point.

[00:44:54] Speaker 00:
There may be discovery from the attorney general's office regarding any plans they have in place to or people that they've hired to prosecute this kind of a crime.

[00:45:05] Speaker 00:
There may be evidence regarding what law enforcement training has gone on to determine whether or not you can identify who's providing advice to minors.

[00:45:17] Speaker 00:
Certainly those kinds of things, Your Honor.

[00:45:18] Speaker 00:
And then as well, of course, we have in our complaint but did not seek a preliminary injunction on the right to travel.

[00:45:24] Speaker 00:
And we would anticipate there may be some historical evidence related to that, Your Honor.

[00:45:29] Speaker 01:
Well, I think Mr. Turner also said there's a redressability problem that folds into the

[00:45:35] Speaker 01:
young problem, and that is that we don't have any state prosecutors that have refused or have decided to prosecute so as to kick in the attorney general's authority.

[00:45:51] Speaker 01:
So what's the redressability here and traceability?

[00:45:57] Speaker 00:
Well, Your Honor, I think that the redressability here is, of course, we don't have to show that by getting an injunction or prevailing against the attorney general that every problem is solved.

[00:46:09] Speaker 00:
Certainly, the attorney general would not be able to bring any prosecution.

[00:46:13] Speaker 00:
And I think the court pointed out he has not disavowed his authority to prosecute.

[00:46:17] Speaker 00:
There's a specific provision.

[00:46:19] Speaker 00:
in this statute that says he gets to prosecute if somebody else refuses to do so.

[00:46:25] Speaker 00:
And he's the one, he's the only one, Your Honor, who can do this throughout any of Idaho's 44 counties.

[00:46:32] Speaker 00:
And one of the challenges in deciding if there needed to be a county prosecutor is we don't know what county that's going to arise in.

[00:46:41] Speaker 00:
We may know which county, for example, Ms.

[00:46:42] Speaker 00:
Matsumoto lives in.

[00:46:44] Speaker 00:
But getting relief from this particular injury by not having the attorney general be able to enforce it is a substantial relief and addresses the injury that the plaintiffs assert in this case, Your Honor.

[00:46:59] Speaker 00:
And with respect to the ex parte young,

[00:47:02] Speaker 00:
part of that, we think that this circuit's precedent on ex parte young is pretty strong that the attorney general is the appropriate defendant, whether you look at Messines or RW versus Columbia Basin College.

[00:47:17] Speaker 00:
or Planned Parenthood versus Wasden, Your Honor.

[00:47:21] Speaker 00:
And I don't read Wasden.

[00:47:22] Speaker 00:
I know, Judge McKeown, that you were on that panel.

[00:47:26] Speaker 00:
But I don't read the Wasden case as saying that the ex parte Young exception applied to former Attorney General Wasden because there was an Ada County deputy there.

[00:47:36] Speaker 00:
I think it was based on the language of the statute.

[00:47:39] Speaker 00:
And it wasn't just in some connection was that that statute

[00:47:43] Speaker 00:
that the attorney general, if he got involved in a prosecution, could do everything that a prosecuting attorney could do.

[00:47:51] Speaker 00:
And I think, Your Honor, Messines, the more recent case, makes it clear there needs to be some connection.

[00:47:56] Speaker 00:
And here, 18.623.4, which gives the attorney general the authority at his sole discretion to bring a prosecution if a county prosecutor does not, that is more than some connection with the enforcement of the law.

[00:48:12] Speaker 01:
One last question.

[00:48:16] Speaker 01:
If you were successful on some portion of the recruit argument, why wouldn't that be severed, as opposed to invalidating the entire statute?

[00:48:28] Speaker 00:
Well, Your Honor, we would submit that the transporting and harboring, the vagueness problem certainly would remain for those.

[00:48:38] Speaker 01:
OK, I probably wasn't quite precise enough.

[00:48:42] Speaker 01:
And that is, let's assume there's not a vagueness First Amendment or some other constitutional problem with transporting and harboring, but that there could be with respect to recruitment.

[00:48:54] Speaker 01:
Why shouldn't that be sliced off?

[00:48:56] Speaker 00:
Well, our position, of course, is there still remains a First Amendment problem, and that the object of this, the abortion that's lawful in another state, still makes it problematic for those reasons.

[00:49:07] Speaker 00:
They can't associate.

[00:49:08] Speaker 00:
They can't raise money in support of an activity where it is lawful in the state where it occurs.

[00:49:15] Speaker 01:
I've never heard that you can't raise money.

[00:49:19] Speaker 01:
I've never heard that challenged.

[00:49:20] Speaker 00:
Yeah, I apologize, Ron.

[00:49:21] Speaker 00:
I didn't speak precisely enough.

[00:49:23] Speaker 00:
There is, I think, with respect to association and expressive conduct, there is...

[00:49:28] Speaker 00:
The fact that this is activity that you engage in and that your donors support through providing the money, and one of the cases at least is in our briefing, Your Honor, that if you're restricted from doing those activities, which we think are expressive and associational, that has an impact then on the ability to raise the money to impact donors who won't want to provide money because their message of expressive conduct and association is not allowed to go forward because of that statute.

[00:49:58] Speaker 00:
Thank you.

[00:49:59] Speaker 00:
All right.

[00:49:59] Speaker 00:
Thank you, Your Honors.

[00:50:05] Speaker 03:
We'll give you four minutes.

[00:50:17] Speaker 04:
Thank you, Your Honors.

[00:50:18] Speaker 04:
I did not hear my colleague address the Thompson case or the Dingra case.

[00:50:23] Speaker 04:
I think those cases are devastating.

[00:50:24] Speaker 04:
In Dingra, this court said that the word persuade was not unconstitutionally vague under the First Amendment.

[00:50:32] Speaker 04:
If persuading somebody to engage in what the state has deemed unlawful is not unconstitutionally vague, it certainly cannot be the case that recruit is unconstitutionally vague.

[00:50:43] Speaker 04:
They've got no response to Thompson or Dingra.

[00:50:46] Speaker 04:
I think what I heard from the other side is that this case ultimately comes down to the fact that receiving an abortion in a neighboring state is lawful.

[00:50:58] Speaker 04:
Therefore, any conduct that is made in pursuit of that lawful activity can be, provided it has First Amendment elements, is protected.

[00:51:07] Speaker 04:
That's not the law.

[00:51:09] Speaker 04:
To your hypothetical, Judge Owens, I think that it demonstrates a concerning

[00:51:14] Speaker 04:
amplification of the First Amendment way outside its traditional contours.

[00:51:19] Speaker 04:
Consider other things that are lawful in neighboring states that are not lawful in Idaho.

[00:51:26] Speaker 04:
Marijuana use.

[00:51:28] Speaker 04:
uh... if you know basically it puts states at war with each other to be able to uh... race to the bottom on on on varying views of more of morals uh... sex reassignment surgeries is another one do we really think that it's unlawful for idaho to say that its parent that

[00:51:46] Speaker 04:
Parents of minors need to be able to know whether their children are being transported to another state to receive puberty blockers, cross-sex hormones, or even a sex reassignment surgery.

[00:51:57] Speaker 04:
The logic has no end.

[00:52:01] Speaker 04:
The shoe fits the other foot, too.

[00:52:03] Speaker 04:
Consider a Washington law.

[00:52:04] Speaker 04:
If Washington responded and said, you cannot

[00:52:07] Speaker 04:
traffic minors to go to Idaho to receive conversion therapy.

[00:52:11] Speaker 04:
Under our view, that's perfectly consistent.

[00:52:14] Speaker 04:
That law is valid.

[00:52:16] Speaker 04:
Under her view, that's unconstitutional under the First Amendment.

[00:52:19] Speaker 04:
It has to go both ways, and I don't think there's a limiting logic to their view.

[00:52:24] Speaker 04:
It's also inconsistent with the Holder v. Humanitarian case, where

[00:52:28] Speaker 04:
The federal law criminalized something that was perfectly legal in another country, another jurisdiction, criminalized material support for various organizations that the United States had deemed were terrorist organizations, but the material support for an organization in Iraq or Iran certainly was lawful in terms of Iraq or Iran's law.

[00:52:49] Speaker 04:
It just doesn't make sense to say that this all turns on whether some part of the act is lawful.

[00:52:56] Speaker 01:
I don't think federalism and all the suggestion about the states being the laboratories quite extends to Iraq.

[00:53:04] Speaker 04:
Well, but here's another point, Your Honor, is it puts other constitutional protections at war with each other.

[00:53:10] Speaker 04:
So parental rights in Myers, Pierce, Shinatowski.

[00:53:15] Speaker 04:
Yeah, and I think that's a real concern because the Supreme Court has made very clear that parents have a custody obligation over their children.

[00:53:24] Speaker 04:
That means making medical decisions.

[00:53:26] Speaker 04:
And it puts that at war.

[00:53:28] Speaker 04:
And so now parents in Idaho may have a claim, a constitutional claim, against this injunction if they can't even exercise their parental rights because there's apparently a First Amendment right at war with their parental rights.

[00:53:41] Speaker 04:
That doesn't make any sense.

[00:53:48] Speaker 04:
I think some of these hypotheticals get to the point of as-applied challenges and why they're necessary in these cases.

[00:53:56] Speaker 04:
If you start encroaching on the edges, maybe you get to some close cases.

[00:54:01] Speaker 04:
And as the Supreme Court said in Hanson, that's the stuff of an as-applied challenge.

[00:54:06] Speaker 04:
That's where the protection comes from.

[00:54:07] Speaker 04:
But in terms of abstract advocacy of the billboard versus the in-person counseling that looks a lot like recruiting and engages in conduct, now that's speech integral to a crime.

[00:54:20] Speaker 04:
If there are any other questions, I'd be happy to answer them.

[00:54:23] Speaker 01:
I'm sure we have a lot more questions, but I don't have any today.

[00:54:28] Speaker 03:
All right.

[00:54:28] Speaker 03:
Thank you very much, counsel.

[00:54:29] Speaker 03:
Thank you to both lawyers for their fine argument and briefing in this case.

[00:54:33] Speaker 03:
This matter is submitted, and we are done for the day.

[00:54:36] Speaker 03:
Thank you.

[00:54:37] Speaker 01:
Thank you.

[00:54:37] Speaker 01:
I also want to echo Judge Owens that the briefing and the argument today have really been exceptional.

[00:54:42] Speaker 01:
Thank you.