[00:00:01] Speaker 00: Good morning, Your Honors. [00:00:02] Speaker 00: May it please the court. [00:00:04] Speaker 00: My name is Alan Hurst, I represent Attorney General Labrador in this matter. [00:00:09] Speaker 00: In this matter, I think there are issue three kinds of conduct that the plaintiffs say have been deterred. [00:00:13] Speaker 00: Is the microphone turned on? [00:00:15] Speaker 00: Am I too far? [00:00:16] Speaker 00: Did that work? [00:00:17] Speaker 00: Yeah, now we got it. [00:00:18] Speaker 02: That's better. [00:00:19] Speaker 00: All right. [00:00:21] Speaker 00: In this matter, I think there are three kinds of conduct that the plaintiffs say have been deterred. [00:00:25] Speaker 00: The first one is leaving the state to perform an abortion in a state where it is legal. [00:00:30] Speaker 00: This is not mentioned in the crane letter, and the attorney general disavows any enforcement under those circumstances. [00:00:37] Speaker 00: The second is advising patients inside Idaho about their abortion options outside the state. [00:00:45] Speaker 00: This is also not mentioned in the crane letter, and the attorney general disavows enforcement. [00:00:51] Speaker 00: The crane letter is only about the third category of conduct at issue here, referring a person outside the state for an abortion. [00:00:59] Speaker 00: However, the crane letter does not say that a referral outside of the state would be criminal. [00:01:05] Speaker 00: Instead, it says that it's a licensing matter. [00:01:09] Speaker 00: And if you look at the statute that it quotes, Idaho Code 18-622, it is clear that assisting in abortion has only licensing penalties attached. [00:01:21] Speaker 00: And those penalties are enforced only, quote, by the appropriate licensing board, end quote. [00:01:29] Speaker 00: That is an administrative process. [00:01:31] Speaker 00: The Attorney General has zero involvement in that process and disavows enforcement. [00:01:35] Speaker 01: Does the Attorney General's interpretation of the law have any impact on those entities? [00:01:43] Speaker 00: As a legal matter, no. [00:01:45] Speaker 00: As a practical matter, would they read it? [00:01:47] Speaker 00: Would they find it influential? [00:01:49] Speaker 00: I can't speak to that. [00:01:50] Speaker 00: But there is no legal reason that they would be bound by the Attorney General's opinion. [00:01:55] Speaker 01: That surprises me a little bit. [00:01:58] Speaker 01: It may be right in Idaho, but typically, attorney general's opinions make some real difference in terms of law enforcement and law interpretation within a state. [00:02:06] Speaker 00: There are, in fact, decisions by the Idaho Supreme Court that say, well, let me back up. [00:02:12] Speaker 00: I'm not sure this would be a law enforcement matter. [00:02:14] Speaker 00: Remember, this is an administrative agency, and it's independent, the licensing boards are. [00:02:18] Speaker 00: This is not a local prosecutor that the AG is working with on a regular basis. [00:02:22] Speaker 00: This is something entirely separate. [00:02:23] Speaker 00: They can hire their own lawyers. [00:02:26] Speaker 00: If there were a controversy over one of their licensure decisions, they might involve the attorney general, but they might also not. [00:02:33] Speaker 00: That's up to them. [00:02:35] Speaker 01: So you have not quite said this yet. [00:02:38] Speaker 01: Correct. [00:02:38] Speaker 01: But I'm understanding the implication of what you're saying is [00:02:43] Speaker 01: irrespective of any attempt to withdraw or retreat from this initial letter, that's irrelevant to your argument. [00:02:50] Speaker 01: You're saying this letter, even if it's full force in effect, nonetheless doesn't make any difference and you win. [00:02:56] Speaker 01: Are you saying that? [00:02:57] Speaker 01: Yes, I am saying that. [00:02:58] Speaker 01: I would also say that- So you're willing to concede that this remains the position of the Attorney General on the merits? [00:03:05] Speaker 00: I am not- You didn't say that in your briefing, but you're saying it now. [00:03:09] Speaker 00: I'm not willing to concede that it remains the position of the attorney general on the merits. [00:03:13] Speaker 01: And I know that... I thought you said it didn't matter, but okay, tell me what your position is then. [00:03:19] Speaker 01: You're saying that the attorney general has retreated from the position in the letter? [00:03:23] Speaker 00: I'm saying that... So I don't think I'm contradicting myself here. [00:03:27] Speaker 00: If he has not retreated from it, I don't think it matters, because it has no effect on the licensing board. [00:03:34] Speaker 00: The reason, I sense this frustration here. [00:03:37] Speaker 01: But are you saying he has retreated or hasn't retreated? [00:03:40] Speaker 01: Or are you taking a position on that point? [00:03:44] Speaker 00: I sense the frustration. [00:03:45] Speaker 00: There's a feeling that the attorney general is trying to be cute or trying to have it both ways, right? [00:03:49] Speaker 00: I mean, that's the sense I get from the windmill appointment. [00:03:52] Speaker 00: Yes. [00:03:52] Speaker 02: Yes, there absolutely is. [00:03:52] Speaker 02: But which is it? [00:03:53] Speaker 02: What position? [00:03:54] Speaker 02: I mean, it's sort of the same situation as that recent Supreme Court case. [00:04:04] Speaker 02: I don't know how to, Vickrey, where the representative of the attorney general wouldn't just [00:04:13] Speaker 02: Say, no, we will never interpret the statute to interpret the language assist to mean providing information. [00:04:23] Speaker 00: So as we said in our 28-J response, I think it's FICRE. [00:04:28] Speaker 00: I don't think FICRE applies, because in that case, the attorney general actually took action against someone and voluntarily desisted during the litigation. [00:04:38] Speaker 00: And here we have no action. [00:04:39] Speaker 00: We have an opinion letter, but we don't have any action against the plaintiffs. [00:04:44] Speaker 00: And the opinion letter doesn't mention the plaintiffs, and it wasn't publicized for the plaintiffs to see it. [00:04:48] Speaker 00: It was hand-delivered paper copy to a legislator. [00:04:53] Speaker 00: But I think I have forgotten your honor's question. [00:04:54] Speaker 00: I apologize. [00:04:55] Speaker 02: No, it's OK. [00:04:56] Speaker 02: I think you're answering it, but your answer doesn't answer it. [00:04:59] Speaker 02: I mean, I think you're attempting to answer it. [00:05:01] Speaker 02: But I think all of that's irrelevant to the question of what is it the position of the attorney general that the Defense of Life Act would prohibit [00:05:20] Speaker 02: would prohibit informing patients that they could go across state lines to get women's health care? [00:05:29] Speaker 00: No. [00:05:29] Speaker 00: The crane letter does not say that it would be a licensure issue to tell them they can go across state lines. [00:05:37] Speaker 00: And the attorney general has never taken the position that that would be illegal under the statute. [00:05:42] Speaker 00: It says referral, which is a separate matter to my mind. [00:05:46] Speaker 00: And I can go on and talk about that, but I think Judge Fletcher would like to ask a question. [00:05:50] Speaker 01: Well, I'm actually reading from the language of the letter. [00:05:52] Speaker 01: An Idaho health professional who refers a woman across state lines, what's refer mean there? [00:06:01] Speaker 00: Well, I think it refers to the conduct that is described in the plaintiff's affidavits below, that they say, we have this concern that even if we, and my apologies if I misrepresent this, but I don't think I am, we have this concern that even if we tell them abortion is legal across state lines, they won't go over and get one unless it's already arranged for them and they know that there is care waiting for them after the travel. [00:06:27] Speaker 00: And so I understand referral to mean calling up the office in the other state and telling them, here is a woman who would like an abortion. [00:06:35] Speaker 00: I am putting you in touch, and I'm helping her schedule, and then getting involved to provide continuity of care. [00:06:40] Speaker 00: I understand that to be a referral. [00:06:41] Speaker 00: I don't understand it to be a referral to say, by the way, here are clinics in other states that could do this. [00:06:46] Speaker 01: OK. [00:06:48] Speaker 01: I'll accept for the moment that that's what that means. [00:06:52] Speaker 01: I was rather surprised that all of the arguments you make in front of us, and it seems to make pretty much all the arguments you made in front of Judge Windmill, don't go to defending this position taken by the Attorney General. [00:07:06] Speaker 01: I assume you acquiesce in the conclusion that this is unconstitutional, because you made no defense. [00:07:15] Speaker 01: What's going on here? [00:07:16] Speaker 00: We're on a preliminary injunction record, Your Honor. [00:07:18] Speaker 01: Well, a preliminary injunction talks to the merits, and you have not addressed the merits. [00:07:22] Speaker 00: That is correct, Your Honor. [00:07:23] Speaker 00: I am not here to address the merits today. [00:07:25] Speaker 01: Why are you here to address the merits? [00:07:27] Speaker 00: My answer to that is because I'm handling a preliminary injunction appeal, and the lawyers handling the preliminary injunction did not address the merits, and so I don't have that in my toolbox of issues. [00:07:37] Speaker 02: Yes, but one of the prongs is likelihood of success on the merits, so don't you have to speak to that? [00:07:43] Speaker 00: They didn't choose to below, Your Honor. [00:07:45] Speaker 00: They chose to focus entirely on jurisdiction. [00:07:47] Speaker 01: But that's clearly present in a request for a preliminary injunction, and I see no defense on the merits of what's going on here. [00:07:57] Speaker 01: It's all procedure. [00:07:58] Speaker 00: If the case continues below after this appeal, we will mount a defense. [00:08:01] Speaker 01: Well, your chance to make the defense was already in front of you. [00:08:05] Speaker 01: I take this as a concession that they're right on the merits. [00:08:09] Speaker 01: Why am I wrong in taking that as your concession? [00:08:14] Speaker 00: Your honor, this case was filed. [00:08:15] Speaker 00: So I want to draw your attention to the very quick schedule below. [00:08:21] Speaker 00: The letter was issued end of March, nine days later, before the attorney general knew the letter had been published, he is sued. [00:08:28] Speaker 00: And that was on April 4th. [00:08:29] Speaker 00: And 20 days later, there's already a preliminary injunction hearing. [00:08:33] Speaker 01: They were in a hurry. [00:08:36] Speaker 00: They picked their best issue and they stuck with it. [00:08:38] Speaker 01: It would take me about 30 seconds to say, uh-oh, this is a preliminary injunction and on the preliminary injunction one of the things you argue is likely success on the merits. [00:08:49] Speaker 01: Everybody knows that. [00:08:50] Speaker 01: Even your lawyers below that you're trying to walk away from or blame it on, they knew that. [00:08:57] Speaker 00: I don't know what else to say, Your Honor, beyond. [00:09:01] Speaker 00: I wasn't there, and I don't know why they made this decision. [00:09:03] Speaker 03: I had understood from your briefing that your position was that the position reflected, and this is getting back to the earlier colloquy you had with Judge Fletcher, that the position or the interpretation of Idaho law reflected in the crane letter is no longer the view of the attorney general. [00:09:21] Speaker 03: I mean, you haven't. [00:09:23] Speaker 03: You haven't said that it's wrong, but you're just saying that it's not reflective of your view now. [00:09:29] Speaker 03: Is that right? [00:09:30] Speaker 00: So it's not an official position of the Attorney General's office. [00:09:33] Speaker 02: And the reason I keep being precise is because we're using a lot of semantics here. [00:09:41] Speaker 00: I agree. [00:09:41] Speaker 00: Here is the reason that I am not going farther than saying, no, the attorney general disagrees with this. [00:09:46] Speaker 00: If you read our positions, we have throughout said, we are not the enforcers here. [00:09:51] Speaker 00: If there's criminal liability, it's the county prosecutors. [00:09:53] Speaker 00: If there's licensure, it's the licensing board. [00:09:56] Speaker 00: These are people with whom we have ongoing relationships, but no supervisory authority. [00:10:00] Speaker 00: And I don't want to go around taking positions that are going to bind them or hurt them later. [00:10:05] Speaker 00: I don't know if they intend to enforce these things, so far as I know they do not. [00:10:09] Speaker 00: Still, I don't see it as our position when we don't enforce either possible penalty here. [00:10:14] Speaker 00: I don't see it as our place to be taking positions in advance of the people who actually do prosecute. [00:10:20] Speaker 03: So I guess I'm, like my colleagues, trying to understand your non-defense of the merits of this. [00:10:29] Speaker 03: Is the reason that because you no longer view it as the attorney general's position that you didn't want to make arguments in defense of it, is that the reason? [00:10:42] Speaker 00: I think so. [00:10:43] Speaker 00: I don't think the attorney general takes this position at this time. [00:10:47] Speaker 03: This is maybe more of an atmospheric question than a doctrinal question. [00:10:55] Speaker 03: If we accept your arguments about how everything works in Idaho, then the attorney general basically has nothing to do with the enforcement of this law. [00:11:05] Speaker 03: suing the attorney general and getting an injunction against him. [00:11:08] Speaker 03: I mean, they might as well have sued the state insurance commissioner, right? [00:11:12] Speaker 03: That's hard to reconcile with the sort of what I think could fairly be characterized as the vigor with which you are opposing the injunction here, right, every day. [00:11:22] Speaker 03: It seems like on your reading of state law, the injunction is just kind of a pointless waste of everyone's time. [00:11:26] Speaker 03: But why are you so committed to opposing it? [00:11:33] Speaker 00: Well, you'll note that we didn't oppose it on the merits, right? [00:11:36] Speaker 00: We opposed jurisdiction. [00:11:37] Speaker 00: We did note that. [00:11:38] Speaker 00: Yes. [00:11:40] Speaker 00: So we opposed it on jurisdiction. [00:11:43] Speaker 00: And I mean, a good chunk of the answer, Your Honor, is fees. [00:11:49] Speaker 00: At the end of this, if they prevail in showing this is unconstitutional, then this letter by the Attorney General of Idaho, which was never meant to be public and never meant to be enforced by anybody in the Attorney General's office, is going to lead to a fee award. [00:12:01] Speaker 00: And so it matters to us a great deal that we convince, Your Honors, that no, actually there was never jurisdiction over us here and we can't have fees awarded against us. [00:12:11] Speaker 01: that this is the only thing that's the issue here, and the only reason you care is fees. [00:12:16] Speaker 01: That just doesn't strike me as realistic as what's going on here. [00:12:21] Speaker 00: We have a history, Your Honor. [00:12:23] Speaker 00: As you're presumably aware, we have, I mean, disputes with Planned Parenthood go obviously back at least 20 years to that Lozden case. [00:12:30] Speaker 00: Currently, before this court, we have numerous other Idaho statutes that are being attacked by various groups. [00:12:38] Speaker 00: Yes, and this issue of whether the attorney general is an appropriate defendant when people have standing to sue him comes up in case after case after case. [00:12:49] Speaker 00: And so we have an institutional interest in persuading the courts that the attorney general does not criminally prosecute, does not civilly enforce licensure laws, and is not a proper defendant. [00:13:00] Speaker 02: When called upon by a county district attorney and or appointed by the governor and or appointed by a district court, [00:13:12] Speaker 02: the AG does come in and defend these lawsuits, right? [00:13:17] Speaker 02: Is authorized to enter the law. [00:13:19] Speaker 00: There's specific procedures, yes. [00:13:21] Speaker 00: If a county prosecutor requests assistance, then there's a section of the statute, I think it's in Title 31, I forget the exact number, but there's a section of the statute that says, if a prosecutor initiates a prosecution, [00:13:38] Speaker 00: the attorney general or one of his deputies can be appointed as a special prosecutor for the prosecution that the prosecutor initiated. [00:13:45] Speaker 00: Yes, that is correct. [00:13:46] Speaker 00: However, there's no such provision for the licensing board. [00:13:49] Speaker 00: For the civil enforcement, there's nothing like that. [00:13:52] Speaker 02: You cite a lot and rely upon a lot. [00:13:58] Speaker 02: statute regarding opinions and level of opinions that the AG provides. [00:14:06] Speaker 02: Don't they have the force of law in Idaho or they must have some force of law in Idaho or this whole predicate for having this statute wouldn't be there. [00:14:20] Speaker 00: I would disagree if you look at the, so we're referring to the duties of the Attorney General in 67-1401. [00:14:30] Speaker 00: I would take this particular provision as requiring the Attorney General to answer the legislature's questions that the legislature has. [00:14:37] Speaker 02: What's the point of giving his opinion? [00:14:40] Speaker 00: To advise the legislature as they are considering further legislation. [00:14:46] Speaker 00: And that, to me, further speaks to the lack of a controversy here, because we have a legislator who cannot enforce the statute asking the attorney general who does not enforce the statute what the statute means. [00:14:56] Speaker 00: This isn't about enforcement. [00:14:58] Speaker 00: This is about legislation. [00:14:59] Speaker 00: And so the attorney general gives an advisory opinion to the legislature about the scope of existing law. [00:15:05] Speaker 00: That's all that happened here until somebody took the opinion and published it without the attorney general's knowledge. [00:15:11] Speaker 01: And I couldn't tell from the record [00:15:14] Speaker 01: How this happened? [00:15:15] Speaker 01: Do we have any idea how this happened? [00:15:18] Speaker 00: From the record, no. [00:15:20] Speaker 00: From my personal knowledge, no. [00:15:22] Speaker 00: Somehow or another, I mean, the person who had the paper was the legislator. [00:15:26] Speaker 00: Presumably the legislator gave it to his friends at an abortion, you know, an anti-abortion group, and these friends decided to publish it for some reason or another. [00:15:34] Speaker 00: The Attorney General was not aware this was the plan when he wrote the letter and handed it to the legislator. [00:15:39] Speaker 01: Did the Attorney General say, this is between you and me? [00:15:43] Speaker 01: Did the Attorney General make any restriction on publication of the letter? [00:15:46] Speaker 00: Not that I'm aware of, Your Honor. [00:15:48] Speaker 01: Putting to one side for the moment the effect of the letter, my question is, and we've asked this in various forms, and I want to get as clean an answer from you as I can. [00:16:00] Speaker 01: What's the Attorney General's position now as to whether or not what he wrote in this letter is his current position? [00:16:07] Speaker 01: Has he backed away from it on the merits? [00:16:10] Speaker 03: Not that I'm aware of yeah, okay, so I Thought maybe I misunderstood okay your earlier answer. [00:16:19] Speaker 00: Thank you [00:16:20] Speaker 00: I mean, back to weight, has he repudiated on the merits? [00:16:23] Speaker 00: Has he given a contrary interpretation of the law that says, no, referrals are not included in assistance here? [00:16:28] Speaker 00: He has not done that. [00:16:29] Speaker 00: Does he defend this in any way? [00:16:31] Speaker 00: Does he advance this theory in any way in courts? [00:16:33] Speaker 00: No, he does not do that. [00:16:34] Speaker 00: Why not? [00:16:35] Speaker 00: I've said before, it's not his job. [00:16:38] Speaker 00: This is not his area to prosecute. [00:16:39] Speaker 00: And he doesn't see it as his role to be taking positions publicly on this issue. [00:16:44] Speaker 00: And you see that in the crane revocation letter. [00:16:46] Speaker 00: He says, wait. [00:16:47] Speaker 00: This was not intended as an enforcement directive. [00:16:50] Speaker 00: It's being interpreted as enforcement directive. [00:16:52] Speaker 00: I am withdrawing it, because it's not supposed to be used for that. [00:16:56] Speaker 00: I see that I am running out of time, so I should leave myself a couple minutes. [00:17:01] Speaker 00: Thank you, Your Honor. [00:17:23] Speaker 04: I guess it's still technically good morning, Your Honors. [00:17:25] Speaker 04: Peter Nyman from Wilmer Hale for the plaintiffs in this case. [00:17:30] Speaker 04: I want to focus on three critical things that the Attorney General's representative did not say in his argument this morning that I think explain why there is absolutely still an ongoing case or controversy here. [00:17:45] Speaker 04: First, he did not say that his prior interpretation [00:17:48] Speaker 04: of Idaho law as making it a felony to provide referrals for lawful out-of-state abortions was wrong. [00:17:55] Speaker 04: He didn't say that. [00:17:57] Speaker 04: Second, he didn't say that he would decline to assist in a prosecution of our clients for making referrals if asked to do so by a county prosecuting attorney or by the governor. [00:18:08] Speaker 04: And third, he did not say that any of the 42 county prosecuting attorneys, who by the way he represents in this matter, would not bring such a prosecution or request such assistance. [00:18:19] Speaker 04: So that means that if the court were to do what's requested here, which is to vacate the injunction, and if my clients at that point chose to resume making referrals, they could be prosecuted with the attorney general's assistance the next day. [00:18:33] Speaker 03: So to establish standing, you need to show a credible threat of prosecution under the theory reflected in this letter, right? [00:18:43] Speaker 03: I agree with that, Your Honor, yes. [00:18:45] Speaker 03: And so that prosecution would have to be initiated by one of the county attorneys, would it not? [00:18:53] Speaker 04: I don't think that's actually strictly true if you read the Supreme Court of Idaho's decision in State v. Summer. [00:18:58] Speaker 04: In terms of the initiation that is in that the facts of that case are that the Attorney General brought the prosecution himself Went into the grand jury without the county prosecuting attorney present obtained an indictment Proceeded in court at some point an objection was raised to the Attorney General handling that case. [00:19:14] Speaker 04: It was at that point later that The court said, you know You need to get the county prosecuting attorney to make a motion County prosecuting attorney made the motion and the court said that cured any issue and the case went forward so in fact, it's not the case that they would need to [00:19:28] Speaker 04: be there to initiate, just to be precise. [00:19:30] Speaker 03: Okay, so, but the county prosecutor, I take that point, but the county prosecutor would have to be onboard with it, right? [00:19:39] Speaker 03: Yeah, eventually. [00:19:41] Speaker 03: Okay. [00:19:42] Speaker 03: And so what evidence is there that any county prosecutor agrees with this interpretation or would be interested in bringing a prosecution on the basis of it? [00:19:54] Speaker 04: Well, we have affidavits that they chose to submit from 42 county prosecutors, not a single one of which disavowed this theory, first of all. [00:20:01] Speaker 03: Well, but they all said they basically didn't care about what the attorney general thought and I guess, well, [00:20:09] Speaker 03: Forgetting about that, I mean, it's your burden to establish that somebody somewhere would actually bring the prosecution, right? [00:20:16] Speaker 04: That's right, Your Honor. [00:20:17] Speaker 04: I think there's sort of three steps to what we would need to show here. [00:20:19] Speaker 04: First, that our conduct is arguably protected by the Constitution, which I think is undisputed here. [00:20:25] Speaker 04: Second, that there's an arguable interpretation of state law under which our conduct is a violation of state law. [00:20:31] Speaker 04: And the Attorney General has declined to say this is not an arguable interpretation of state law. [00:20:35] Speaker 04: So we've got the second. [00:20:36] Speaker 04: piece met. [00:20:37] Speaker 04: And then third, is there a reasonable threat? [00:20:39] Speaker 04: And what the court has said in a whole series of cases is that a refusal to disavow a prosecution when the law arguably covers the conduct and the conduct is protected by the First Amendment is very strong evidence of a real threat. [00:20:53] Speaker 03: So but that argument would be equally available to you if this letter had never been written, right? [00:20:59] Speaker 03: Well, no. [00:20:59] Speaker 03: You would have an arguable interpretation of state law, right? [00:21:03] Speaker 04: I think we would be taking the very strong position that this is not a valid interpretation of state law at all. [00:21:09] Speaker 04: And I think our position would be more difficult if this letter had never been written, because I think when you have a formal letter from the state attorney general on their own letterhead under their own signature that says that your conduct [00:21:22] Speaker 04: is a felony. [00:21:23] Speaker 04: He tried to say today that it was just a regulatory issue. [00:21:25] Speaker 04: But the letter begins, this letter is in response to your recent inquiry regarding Idaho's criminal prohibition on abortion. [00:21:31] Speaker 04: And then it says that Idaho law prohibits referrals. [00:21:37] Speaker 04: I think it's very rational to read this as a claim that the criminal law will be violated here. [00:21:44] Speaker 04: If we didn't have this letter, it would be a harder argument to make that this was a arguable interpretation of state law. [00:21:50] Speaker 04: But I don't think the state can make the claim that it's not an arguable interpretation, given that they wrote this letter and that they have declined to say that it's wrong. [00:21:57] Speaker 03: And going back to the county prosecutors, so I just pulled up the, I think the declarations are basically all the same, the ones that they submitted. [00:22:05] Speaker 03: I think that's right. [00:22:05] Speaker 03: So I did not and do not regard the crane letter as any type of guidance or directive to me. [00:22:11] Speaker 03: Uh, my office has taken no position regarding the scope of enforcement, uh, under Idaho code. [00:22:16] Speaker 03: I mean, yeah. [00:22:18] Speaker 04: So I would just contrast that to what's actually required in this circumstance. [00:22:22] Speaker 04: And if you look at a case like I was on a right to life or a, uh, a case like Bonta, there's a whole series of cases where the court has said, look, if the statute is there and, um, and California pro-life council, I think says this also, the statute is there and [00:22:40] Speaker 04: This conduct is protected constitutionally, but arguably violates the statute. [00:22:45] Speaker 04: And the state doesn't say, we are not going to enforce it against you. [00:22:49] Speaker 04: It's reasonable to be concerned. [00:22:50] Speaker 04: And that makes a lot of sense, right? [00:22:52] Speaker 04: Because what we're concerned about here, in the First Amendment context in particular, is that it's much easier to self-censor than it is to take the risk of going to jail for five years to say what you believe. [00:23:05] Speaker 04: And if you can avoid review, [00:23:10] Speaker 04: of state law and take a, you can have one person come in as the state attorney general and say, I have this really aggressive interpretation of state law. [00:23:19] Speaker 04: It makes your conduct criminal. [00:23:21] Speaker 04: But by the way, I can't enforce this all by myself. [00:23:23] Speaker 04: I'm going to need some help to enforce it. [00:23:25] Speaker 04: And then the enforcer just says, I'm not going to tell you what I think, which is basically what these affidavits say. [00:23:30] Speaker 04: Well, so then, I mean, you've completely eliminated the ability to get pre-enforcement review, which is really important. [00:23:39] Speaker 04: Or at least you've given a state a very easy path to avoiding pre-enforcement review. [00:23:44] Speaker 04: Just have one person make the threat, and a different person have the enforcement power. [00:23:48] Speaker 03: So then why does it matter that it's the attorney general? [00:23:51] Speaker 03: I mean, suppose it was, you know, [00:23:52] Speaker 03: the Speaker of the State House or something. [00:23:55] Speaker 04: Yeah, I think it does matter, Your Honor, because that we're talking about here, not just idle statements, but a formal opinion letter on the Attorney General's letterhead under his signature. [00:24:06] Speaker 04: I think because the second element that we need to show here that there's an arguable interpretation of state law is greatly, our ability to show that is greatly enhanced here by the fact that what we have is [00:24:16] Speaker 04: the chief legal officer of the state, that's his job, who is empowered by state law to issue opinion letters and who issued one that articulated this opinion. [00:24:27] Speaker 04: I think that's different in kind from the kind of things that you're talking about. [00:24:30] Speaker 04: I think we'd have a much tougher argument if it were a casual statement by the attorney general, and I think we'd have a much tougher argument if it were a statement from some other officer. [00:24:39] Speaker 01: You may not be able to answer this question, but I'm going to [00:24:43] Speaker 01: give it a try anyway. [00:24:45] Speaker 01: Let's assume that there is a prosecution that I'm not going to say necessarily relies upon, but certainly coincides with the interpretation of this letter, so that there's a criminal prosecution against someone who has referred someone to services, abortion services outside the state. [00:25:06] Speaker 01: Let's assume that we've got a prosecution [00:25:10] Speaker 01: successful and then there's an appeal. [00:25:14] Speaker 01: At what point, if any, does the Attorney General ever get involved in that lawsuit when we got an appeal from a criminal conviction? [00:25:22] Speaker 04: Your honor, I confess I don't know the answer to that, but I'm sure my colleague does. [00:25:25] Speaker 01: My guess is at some point the attorney general does get involved in defending the constitutionality of the prosecution under this statute. [00:25:33] Speaker 04: I wouldn't be at all surprised if that were correct, but I can't speak to that, your honor. [00:25:39] Speaker 01: You're not representing the state, I get it. [00:25:42] Speaker 04: That's right. [00:25:42] Speaker 04: And look, we think that this court has already decided the question of whether the attorney general is an appropriate [00:25:48] Speaker 04: defendant in an action that seeks to enjoin enforcement of a state law. [00:25:52] Speaker 04: That's this court's decision in Wasden, which is squarely on point and focused on the attorney general's power to assist in prosecutions, which it said was sufficient to make them a proper defendant in this context and eliminate the 11th Amendment argument that they've tried to make. [00:26:09] Speaker 04: They have not disclaimed that power to assist. [00:26:11] Speaker 04: They've acknowledged that they have that power to assist. [00:26:13] Speaker 04: And this court has already said that that's sufficient to make them a proper defendant here. [00:26:17] Speaker 04: We're not suing the insurance commissioner. [00:26:18] Speaker 04: We're suing one of the proper defendants. [00:26:20] Speaker 04: In fact, we sued all the proper defendants. [00:26:22] Speaker 04: The court below hasn't just ruled on all of our claims. [00:26:24] Speaker 01: One of the arguments that's kind of in the background here is that your clients are kind of afraid of ghosts, right? [00:26:34] Speaker 01: That they're acting really [00:26:38] Speaker 01: unreasonably because the threat is not sufficiently severe and they're altering their behavior, but they're really altering their behavior just because they want to bring the lawsuit. [00:26:47] Speaker 04: How do you respond to that? [00:26:49] Speaker 04: I'm glad you asked that question, Your Honor, because I want to respond to that very directly. [00:26:52] Speaker 04: I mean, that's just not true. [00:26:54] Speaker 04: My clients are extremely dedicated physicians who take care of patients in often very difficult circumstances, and they care a lot about making sure their clients have access to the health care they need. [00:27:06] Speaker 04: They silenced themselves for months here because the threat was very serious. [00:27:13] Speaker 04: This was a threat of up to five years in prison, your honor. [00:27:16] Speaker 04: And to be clear about what happened here, we brought this lawsuit. [00:27:21] Speaker 04: And then on the eve of the first appearance in front of the judge, they issued their letter taking back the old letter. [00:27:27] Speaker 04: And we didn't just say, OK, no, it doesn't matter. [00:27:30] Speaker 04: We want to go ahead with this case. [00:27:31] Speaker 04: We went and we spoke to the lawyer that was handling the case for the attorney general. [00:27:36] Speaker 04: And this is reflected in the record. [00:27:37] Speaker 04: We put an affidavit about it. [00:27:39] Speaker 04: And we said, look, we just want to understand. [00:27:41] Speaker 04: Are you saying that if we go and make a referral, should we infer from the fact that you took back this letter that we're not going to get prosecuted, that you're not claiming that's a violation of state law? [00:27:53] Speaker 04: And he said, no, you shouldn't. [00:27:54] Speaker 04: You can't infer anything. [00:27:56] Speaker 04: That was very chilling, Your Honor. [00:27:58] Speaker 04: When you think about what's at stake for our clients, the fact that they were willing to be silent for months while this case was pending before the district court reflected how serious they took the threat. [00:28:11] Speaker 04: And the last thing we want is litigation, Your Honor. [00:28:14] Speaker 04: We want to give our patients the information that they need. [00:28:17] Speaker 01: And your adversary began his argument and stayed with it, really, that the only thing at issue here is a licensing revocation. [00:28:26] Speaker 01: But you're saying, no, there's criminal prosecution that's also contemplated in terms of what this letter says, because you say, listen, it violates the statute. [00:28:35] Speaker 04: That's what the letter says, Your Honor, yes. [00:28:37] Speaker 01: And indeed the... Your reading of the letter is not merely that we might have licensing problems, we might be in jail. [00:28:44] Speaker 04: That's absolutely correct, Your Honor. [00:28:46] Speaker 04: And look, like every other state, Idaho prohibits aiding and abetting, right? [00:28:54] Speaker 04: And so the letter uses the term assist, which is also mentioned in the licensing provision, but assist is a fair summary of what aiding and abetting involves. [00:29:03] Speaker 04: And if an out-of-state abortion is something that Idaho has the ability to declare illegal, which is essentially the claim of the licensing rule, then giving a referral, which would be assisting that abortion to take place, would also violate the criminal statute, which is, in fact, what the letter says. [00:29:19] Speaker 02: May I ask you a question about the term referral? [00:29:22] Speaker 02: Do we look at its meaning in the ordinary sense, or is there a specialized meaning that we give to it here? [00:29:29] Speaker 04: So, you know, I think Council, my friend on the other side, sort of candidly said the term refers to what we do, right? [00:29:38] Speaker 04: We put in affidavits to describe the conduct that we had been engaging in, that we wish to continue engaging in, and that we stopped engaging in. [00:29:45] Speaker 04: as a result, which involves meeting with an individual woman, understanding what her needs and concerns are, if she needs an abortion, providing her information about where that can be obtained. [00:29:56] Speaker 04: Depending on her medical circumstances, there might be a specific provider who would be sensible to refer her to, and also then providing things like continuity of care, making sure that provider out of state has all the information about this patient and the like. [00:30:12] Speaker 04: my colleague to say that's what they mean by referral. [00:30:15] Speaker 04: We've put in an affidavit that says that's what we do, and this letter says that's a crime. [00:30:21] Speaker 04: That's why we're in court. [00:30:27] Speaker 04: Unless there's anything further on, we'll rest on our papers. [00:30:29] Speaker 04: Actually, I did want to just very briefly mention the billboard, which got a lot of play in the briefs, which I hadn't said anything about. [00:30:34] Speaker 04: And I think this is a nice moment to address that, because the billboard is a completely different kind of speech, right? [00:30:42] Speaker 04: sitting down with an individual woman and helping her arrange an out-of-state abortion, giving her information about where she could obtain it and the like. [00:30:49] Speaker 04: The billboard is just a single statement about what's lawful in other states. [00:30:53] Speaker 04: We didn't read the letter as making that a crime, nor could it make that kind of general statement a crime. [00:30:59] Speaker 04: That's kind of a red herring here. [00:31:00] Speaker 04: By the way, it's a statement only of one of my three clients. [00:31:02] Speaker 04: It wouldn't reflect anything about the views of the other. [00:31:05] Speaker 01: I do have a question before you sit down. [00:31:07] Speaker 01: The state has not argued on the merits, either below or here. [00:31:12] Speaker 01: It's all procedural in terms of, jurisdictional in terms of whether we can get there. [00:31:16] Speaker 01: What are we supposed to do? [00:31:17] Speaker 01: Assume for a moment that we think that the suit can go forward. [00:31:21] Speaker 01: Assume that we agree with Judge Windmill on that point. [00:31:23] Speaker 01: Are we supposed to address the merits? [00:31:26] Speaker 01: Are they properly in front of us? [00:31:27] Speaker 04: I mean, we argued below, and the district court found that we were likely to succeed on the merits. [00:31:33] Speaker 04: And I think the record here would permit you to affirm that finding, which I think is clearly correct, by the way, because going back to cases like Bigelow in the 1970s, I think the state has essentially no interest in trying to prevent its citizens from obtaining services outside the state. [00:31:51] Speaker 01: So in your view, the merits question, or likely success on the merits question, is properly in front of us. [00:31:56] Speaker 04: Yeah, I mean, they haven't challenged the ruling below. [00:32:00] Speaker 04: But I think the record is ample for you to affirm it. [00:32:07] Speaker 03: All right, thank you, John. [00:32:09] Speaker 03: So you're not arguing that it's forfeited? [00:32:10] Speaker 04: Well, I'm sorry. [00:32:13] Speaker 04: I absolutely think they have waived whatever arguments they would have on the merits at this stage. [00:32:22] Speaker 04: Thank you. [00:32:23] Speaker 02: They don't want to make any anyway, so anyway. [00:32:27] Speaker 02: So it's waivers, intentional relinquishment of a known right. [00:32:36] Speaker 00: Can I have your five minutes? [00:32:41] Speaker 00: Two points, I think, and then I'll close with more words about disavowing. [00:32:46] Speaker 00: Point one, this issue of licensing versus criminal liability. [00:32:49] Speaker 00: Yes, the letter starts with the word criminal abortion statute because it is, sorry, can you hear me? [00:32:54] Speaker 00: Am I too far away again? [00:32:55] Speaker 00: Yes, the letter starts with the word criminal abortion statute, because it is a criminal abortion statute, and the letter has three numbered paragraphs. [00:33:05] Speaker 00: The first two, the word criminal appears in each, because it's talking about criminal prohibitions. [00:33:09] Speaker 00: This third paragraph, the word criminal does not appear. [00:33:11] Speaker 00: Instead, it cites the statute. [00:33:13] Speaker 00: You look at the statute, the first three sentences of the statute, the first two define the crime of criminal abortion. [00:33:19] Speaker 00: And those two sentences define it as performing or attempting to perform an abortion. [00:33:26] Speaker 00: The word assist does not appear. [00:33:28] Speaker 00: The word assist only appears in the third sentence about licensing. [00:33:31] Speaker 00: So yes, the attorney general believes this is entirely a licensing matter and disavows any criminal prosecution under an assistance theory. [00:33:38] Speaker 00: or for that matter, under an aiding and abetting theory. [00:33:40] Speaker 00: We will not prosecute that. [00:33:42] Speaker 00: That's my first response. [00:33:43] Speaker 00: My second response relates to this issue of whether the attorney general still privately continues to think that this interpretation was correct. [00:33:53] Speaker 00: And my argument is, what he privately thinks does not matter, because his private opinion does not injure them. [00:33:59] Speaker 00: This court has had cases like that before. [00:34:02] Speaker 00: Storrens v. Selecky in 2009, the Plan B case, [00:34:06] Speaker 00: Let's see. [00:34:08] Speaker 00: The boating industry associations case in 1979, both of these cases, you have a regulator saying, here's my opinion. [00:34:17] Speaker 00: And the court says, the opinion does not do the injury. [00:34:20] Speaker 00: You need a threat of enforcement of the opinion. [00:34:22] Speaker 03: So what's your answer to the point that Mr. Nyman made that [00:34:25] Speaker 03: The letter, if nothing else, proves that the position in the letter is a plausible interpretation of Idaho law. [00:34:34] Speaker 03: And we have a bunch of county attorneys, none of them has said, [00:34:41] Speaker 03: I reject this reading of Idaho law. [00:34:43] Speaker 03: So we have people engaging in this conduct. [00:34:47] Speaker 03: There's a plausible interpretation of Idaho law that says it's unlawful. [00:34:51] Speaker 03: Isn't that enough in the absence of any affirmative statement from the county attorneys to think that there's a threat that they'd be prosecuted for it? [00:35:01] Speaker 00: First, I would say it's a different prong of the Thomas factors, right? [00:35:04] Speaker 00: But what I will say is this, the attorney general [00:35:08] Speaker 00: will not initiate one of these prosecutions, and to say the words that he's asking to say, will not assist a county prosecutor who brings a criminal prosecution under this assistance, or getting an abetting theory. [00:35:20] Speaker 00: So I guess my remaining question is, beyond the mere private opinion as to how the statute is interpreted, what else can I disavow to persuade you that we are not going to prosecute them? [00:35:31] Speaker 01: I can't say beyond the mere private opinion. [00:35:34] Speaker 01: Beyond the letter on his letterhead. [00:35:37] Speaker 00: The letter on his letterhead says nothing about enforcement. [00:35:41] Speaker 00: The word is not there. [00:35:42] Speaker 01: No, no. [00:35:43] Speaker 01: Beyond the letter that says, here's my interpretation of the law. [00:35:46] Speaker 01: But that's not private. [00:35:47] Speaker 01: That's on his letterhead. [00:35:49] Speaker 00: It was not intended to be public beyond the legislator. [00:35:53] Speaker 00: And it has been withdrawn. [00:35:55] Speaker 00: I see that my time has also been withdrawn. [00:35:59] Speaker 02: Thank you very much, counsel. [00:36:01] Speaker 02: Planned Parenthood versus Labrador is submitted, and this session of the court is adjourned for today.