States Lack Standing to Challenge FDA's Rules on Dispensing of Abortion Pill

In State of Washington v. U.S. Food and Drug Administration, (9th Cir., July 24, 2024), the U.S. 9th Circuit Court of Appeals refused to permit the state of Idaho (and 6 other states) to intervene in a lawsuit brought by a group of states led by the state of Washington challenging the FDA's restrictions on pharmacies' dispensing of the abortion pill mifepristone. FDA regulations adopted in 2021 allow mifepristone to be dispensed by pharmacies in retail locations or by mail, but only if the pharmacy is specially certified to do so. Washington's lawsuit contends that the certification and documentation requirements are unnecessary.  Idaho, on the other hand, wants the court to order the FDA to go back to earlier requirements that only allowed mifepristone to be dispensed in person by a physician and did not allow it to be obtained directly from pharmacies. The court concluded that because Idaho seeks fundamentally different relief that does Washington, it must establish its own standing in order to intervene. The court concluded that Idaho did not have separate standing, saying in part:

Idaho first alleges that elimination of the in-person dispensing requirement will cause the state economic injury in the form of increased costs to the state’s Medicaid system.  At oral argument, Idaho stated that this is its “strongest basis” for standing.  Even taking Idaho’s highly speculative allegations as true, the complaint does not demonstrate an injury-in-fact because it depends on an attenuated chain of healthcare decisions by independent actors that will have only indirect effects on state revenue....

Idaho next alleges that elimination of the in-person dispensing requirement will harm its sovereign interest in law enforcement by making illegal mifepristone use harder to detect.  This allegation is insufficient to convey standing because nothing in the 2023 REMS impairs Idaho’s sovereign authority to enact or enforce its own laws regulating chemical abortion....

Finally, Idaho alleges that elimination of the in-person dispensing requirement will harm its “quasi-sovereign interest” in maternal health and fetal life.  Idaho cannot sue FDA on this basis because the allegations concern the interests of individual citizens—not the separate interests of the state itself....

Courthouse News Service reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Cert. Petitions Filed in Challenges to Bans on Transgender Women on Women's Sports Teams

Last week, a petition for certiorari (full text) was filed in the U.S. Supreme Court seeking review in Little v. Hecox, (Docket No. 24-38, cert. filed 7/11/2024). At issue in the case is whether Idaho's Fairness in Women's Sports Act violates the Equal Protection Clause.  The Act prohibits transgender women and girls from participating on women's sports teams in public elementary schools, high schools and public colleges. Here are the 9th Circuit opinions issued in the case and text of the relevant statutes.

In a related case, State of West Virginia v. B.P.J., (Docket No. 24-23, cert. filed July 16, 2024), a petition for certiorari (full text) was filed in a case challenging West Virginia's Save Women's Sports Act as violative of Title IX and of the Equal Protection Clause.  At issue is the ban on transgender girls participating on girls' sports teams in public high schools or state colleges where team members are chosen on the basis of competitive skills or in contact sports. Here is the 4th Circuit's opinion in the case and the text of the relevant statute.

ADF issued a press release announcing the filing of the petitions.

Supreme Court Backs Off Deciding Whether EMTALA Pre-empts Idaho's Abortion Ban

In Moyle v. United States, (Sup. Ct., June 27, 2024), the U.S. Supreme Court reinstated an injunction that had been issued by an Idaho federal district court (see prior posting) which barred Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act.  The Supreme Court did this in a per curiam order that vacated a previous stay of the injunction issued by the Supreme Court and which returned the case to the 9th Circuit Court of Appeals, finding that certiorari had been improvidently granted.

Justice Kagan, joined by Justice Sotomayor filed an opinion concurring with the dismissal, saying in part: 

Idaho’s arguments about EMTALA do not justify, and have never justified, either emergency relief or our early consideration of this dispute....

[Idaho] mainly argues that EMTALA never requires a hospital to “offer medical treatments that violate state law,” even when they are needed to prevent substantial health harms.... In my view, that understanding of EMTALA is not “likely to succeed on the merits,” and so cannot support a stay of the injunction.

Justice Jackson concurred in the portion of Justice Kagan's opinion that responded to Justice Alito's dissenting opinion. 

Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh filed a concurring opinion, saying in part:

A grant of certiorari before judgment presumes that further proceedings below are unnecessary to the Court’s resolution of the question presented. That was a miscalculation in these cases, because the parties’ positions are still evolving. The United States has clarified that EMTALA’s reach is far more modest than it appeared when we granted certiorari and a stay. Idaho law has materially changed since the District Court entered the preliminary injunction, and, based on the parties’ arguments before us, it seems that the framing of these cases has not had sufficient opportunity to catch up...

On top of that, petitioners have raised a difficult and consequential argument, which they did not discuss in their stay applications, about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal law.

Justice Jackson filed an opinion concurring in part and dissenting in part, saying in part:

This Court typically dismisses cases as improvidently granted based on “circumstances . . . which ‘were not . . . fully apprehended at the time certiorari was granted.’” ... This procedural mechanism should be reserved for that end—not turned into a tool for the Court to use to avoid issues that it does not wish to decide.

The reasons that justified our grant of certiorari in these cases still hold true today.... The importance of recognizing Congress’s judgments in EMTALA remains as imperative as ever. The United States is still hamstrung in its ability to enforce federal law while States pass laws that effectively nullify EMTALA’s requirements. And, on the ground, healthcare providers “have been all but paralyzed by legal uncertainties,” placing pregnant patients at risk while they are waiting to be transferred out of State to receive the care they need....

If anything, the need for a clear answer to the Supremacy Clause question has only increased in the intervening months....

Despite the clarity of the legal issue and the dire need for an answer from this Court, today six Justices refuse to recognize the rights that EMTALA protects....

Justice Alito, joined by Justice Thomas and in part by Justice Gorsuch, filed a dissenting opinion, saying in part:

 At no point in its elaboration of the screening, stabilization, and transfer requirements does EMTALA mention abortion. Just the opposite is true: EMTALA requires the hospital at every stage to protect an “unborn child” from harm....

For those who find it appropriate to look beyond the statutory text, the context in which EMTALA was enacted reinforces what the text makes clear. Congress designed EMTALA to solve a particular problem—preventing private hospitals from turning away patients who are unable to pay for medical care.... And none of many briefs submitted in this suit has found any suggestion in the proceedings leading up to EMTALA’s passage that the Act might also use the carrot of federal funds to entice hospitals to perform abortions. To the contrary, EMTALA garnered broad support in both Houses of Congress, including the support of Members such as Representative Henry Hyde who adamantly opposed the use of federal funds to abet abortion.....

EMTALA is an exercise of Congress’s spending power. And when Congress relies on its authority to attach conditions to the receipt of federal funds, special rules apply....

The potential implications of permitting preemption here are far-reaching. Under the Government’s view, Congress could apparently pay doctors to perform not only emergency abortions but also third-trimester elective abortions or eugenic abortions. It could condition Medicare funds on hospitals’ offering assisted suicide even in the vast majority of States that ban the practice....

NBC News reports on the decision.

DOE Enjoined from Applying New Title IX Rules Protecting Transgender Students In 4 States

In State of Louisiana v. U.S. Department of Education, (WD LA, June 13, 2024), a Louisiana federal district court enjoined the Department of Education from enforcing against four states new rules under Title IX which, among other things, bar discrimination by educational institutions against transgender students. (See prior posting). The new rules essentially apply the Supreme Court's interpretation of Title VII in the Bostock case to Title IX as well. The injunction applies to the states that were plaintiffs in the case-- Louisiana, Mississippi, Montana and Idaho. The court found that the new rules violate a number of statutory and constitutional provisions, saying in part:

In applying these statutory principles to Title IX, the Court finds that the term “sex discrimination” only included discrimination against biological males and females at the time of enactment. ,,,,

... [T]his Court finds that the application of Bostock and the Final Rule’s definition of “sex discrimination” contradict the purpose of Title IX.... Bostock does not apply because the purpose of Title VII to prohibit discrimination in hiring is different than Title IX’s purpose to protect biological women from discrimination in education.  ...

Defendants thus seemingly use Bostock in an attempt to circumvent Congress and make major changes to the text, structure, and purpose of Title IX. Such changes are undoubtedly contrary to Title IX and contrary to the Law.....

Plaintiffs argue the Final Rule’s new broad “severe or pervasive” standard, which considers speech or other expressive conduct that “limits” a person’s ability to participate in a program to be discriminatory harassment, cannot be squared with Title IX....

While Title VII is vastly important, and the Court sees the merits in harassment standards set forth in those provisions, the Court cannot simply apply the same standard to federally funded educational institutions. The “harassment standard” created by the Final Rule is obviously contrary to Title IX, and Plaintiffs have made compelling arguments for how it can violate the free speech right of the First Amendment. ...

Because the Final Rule is a matter of both vast economic and political significance, the Court finds the enactment of this rule involves a major question pursuant to the major questions doctrine. Therefore, Congress must have given “clear statutory authorization” to the applicable agency. The Court finds that Congress did not give clear statutory authorization to this agency....

This Court finds the Final Rule violates the Spending Clause because it contains ambiguous conditions and because the Final Rule violates other constitutional provisions – free speech and free exercise. Because this Court has found the Final Rule violates the Spending Clause, there is no need to discuss the Plaintiffs’ argument that the Final Rule violates the non-delegation doctrine....

This Court further finds that the Final Rule is arbitrary and capricious because the DOE (1) failed to address relevant factors and (2) and failed to consider important aspects of the problem. 

Supreme Court Hears Arguments on Whether Federal Emergency Treatment Law Preempts State Abortion Ban

The U.S. Supreme Court on Wednesday heard oral arguments in Moyle v. United States, (Docket No. 23-726) and Idaho v. United States, (Docket No. 23-727). (Audio and Transcript of full oral arguments). The case poses the question of whether the federal Emergency Medical Treatment and Labor Act that requires hospitals accepting Medicare to provide stabilizing emergency treatment to patients preempts state abortion bans when such treatment would involve pregnancy termination. The Court took the case without waiting for 9th Circuit review. (See prior posting.) SCOTUSblog reports on the oral arguments.

Supreme Court Limits Scope of Injunction Against Idaho's Gender-Affirming Treatment Ban

In Labrador v. Poe, (Sup. Ct., April 15, 2024), the U.S. Supreme Court, in a case generating three separate opinions, but no opinion for the court, discussed three important issues-- the increasing number of cases on the Court's Emergency Docket (sometimes called its "Shadow Docket"); the increasing number of statewide or nationwide injunctions (sometimes called "Universal Injunctions") issued by federal district courts; and the constitutionality of bans on gender-affirming health care for minors. Last December, an Idaho federal district court issued a preliminary injunction barring the Idaho Attorney General and a county prosecutor from enforcing the state's recently enacted Vulnerable Child Protections Act against anyone. It concluded that the ban likely violated the equal protection clause and plaintiffs' parental rights to make medical decisions for their children. (See prior posting.) One reason given by the district court for issuing a statewide injunction was that plaintiffs, to maintain their privacy, were proceeding using pseudonyms, and it would be difficult to fashion an order applying only to plaintiffs without compromising their anonymity. The 9th Circuit issued a brief order affirming the district court.

In the petition filed with the Supreme Court, the state did not contest the granting of an injunction limited to the plaintiffs' obtaining gender-affirming drug treatments for their children. It only challenged the breadth of the district court's preliminary injunction. The Supreme Court, without issuing an opinion for the majority, stayed the district court's order "except as to the provision to the plaintiffs of the treatments they sought."   Justice Gorsuch, joined by Justices Thomas and Alito, issued a concurring opinion, saying in part:

The district court issued this sweeping relief even though, by its own admission, the plaintiffs had failed to “engage” with other provisions of Idaho’s law that don’t presently affect them—including the law’s provisions prohibiting the surgical removal of children’s genitals.... In choosing such an extraordinary remedy, the district court clearly strayed from equity’s traditional bounds.

Justice Kavanaugh, joined by Justice Barrett, filed a concurring opinion, saying in part:

Traditionally, one important factor when this Court decides an emergency application involving a new law is likelihood of success on the merits.  The likelihood of success on the merits factor can pose difficulty, however, because it can require the Court to assess the merits of important cases earlier and more quickly than is ordinarily preferable, and to do so without the benefit of full merits briefing and oral argument.  But when resolving emergency applications involving significant new laws, this Court often cannot avoid that difficulty. It is not ideal, but it is reality. Given that reality, the Court must then determine the best processes for analyzing likelihood of success on the merits in emergency cases.

Justice Jackson, joined by Justice Sotomayor, filed a dissenting opinion, saying in part:

This case presents numerous reasons for exercising restraint.  As explained in Part I below, the State of Idaho’s emergency application asks us to override the decisions of two lower courts based on an issue not clearly implicated and under circumstances where the State does not contest that its law should remain enjoined as likely unconstitutional, at least as applied to the plaintiffs.  As described in Part II, even if today’s application actually involved a “universal injunction,” the emergency docket would not be the place to address the open and challenging questions that that issue raises.

Justice Kagan dissented, without opinion. Chief Justice Roberts did not indicate how he voted.

SCOTUSblog reports at greater length on the opinions.

New Idaho Law Bars Adverse Action Because of Religious Conduct in Adoption, Foster Care, Licensing and State Contracting

On Monday, Idaho Governor Brad Little signed House Bill 578 (full text) which prohibits state and local governments from treating adversely any adoption or foster care agency that declines to provide services because of a sincerely held religious belief. The new law also provides:

The state government shall not take any discriminatory action against a person who the state grants custody of a foster or adoptive child wholly or partially on the basis that the person guides, instructs, or raises a child, or intends to guide, instruct, or raise a child, based on or in a manner consistent with a sincerely held religious belief. The state government may consider whether a person shares the same religious or faith tradition as a foster or adoptive child when considering placement of the child in order to prioritize placement with a person of the same religious or faith tradition.

The new law goes on to provide that the state cannot deny licensing or the award of a contract to a person because the person believes, maintains policies and procedures, or acts in accordance with a sincerely held religious belief. ADF issued a press release announcing the governor's signing of the bill.

Satanic Temple Loses Challenge to Idaho Abortion Bans

In The Satanic Temple v. Labrador, (D ID, Jan. 31, 2024), an Idaho federal district court dismissed several challenges to Idaho's statutes criminalizing abortion filed by The Satanic Temple which has created its own Abortion Ritual.  The court describes plaintiff's claims:

The Satanic Temple (“TST”) filed the instant case arguing Defendants actions have: (1) effected a regulatory taking of the economic value of a pregnant woman’s womb in violation of the Fifth Amendment; (2) effectively made pregnant women into slaves in violation of the Thirteenth Amendment; (3) given unconstitutional preferences to rape victims in violation of the Fourteenth Amendment; and (4) violated Idaho’s religious freedom statutes.

After finding that TST lacks standing to bring the suit, the court goes on to also reject TST's first three claims on the merits and concludes that TST, which asked to file an amended complaint to substitute a free exercise claim for its claim under Idaho's Exercise of Religious Freedom Act, should do this by fining a new lawsuit rather than an amended complaint.

Idaho Attorney General Labrador issued a press release announcing the decision which he titled "Attorney General Labrador Defeats Satan." LifeNews reporting on the decision said that lawyers for TST plan an appeal to the 9th Circuit.

Supreme Court Grants Review of EMTALA's Impact on State Abortion Restrictions

Yesterday, the U.S. Supreme Court agreed to review an Idaho federal district court decision (see prior posting) that preliminarily enjoined the state of Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act. The Supreme Court Order (full text) comes in the companion cases of Moyle v. United States, (Docket No. 23-726) and Idaho v. United States, (Docket No. 23-727) (certiorari granted, 1/5/2024). In September 2023, a 3-judge panel of the U.S. 9th Circuit Court of Appeals stayed the district court's injunction pending appeal. (See prior posting.)  However, the full 9th Circuit in an en banc Order vacated the panel's opinion that stayed the injunction and granted en banc review. In yesterday's Order, the Supreme Court allowed plaintiffs to bypass review by the 9th Circuit and present the case to the Supreme Court.  The Supreme Court also again stayed the district court's preliminary injunction that limited enforcement of Idaho's abortion ban. It granted review on the Question Presented in Idaho's Application:

Whether EMTALA preempts state laws that protect human life and prohibit abortions, like Idaho's Defense of Life Act.

The Court set arguments for the April 2024 argument session. Here is the SCOTUSblog case page that will link to pleadings in the Supreme Court.

AP reports on the Supreme Court's decision. Yesterday President Biden issued a Statement (full text) criticizing the Supreme Court's action, saying in part:

Today’s Supreme Court order allows Idaho’s extreme abortion ban to go back into effect and denies women critical emergency abortion care required by federal law. The overturning of Roe v. Wade has enabled Republican elected officials to pursue dangerous abortion bans like this one that continue to jeopardize women’s health, force them to travel out of state for care, and make it harder for doctors to provide care, including in an emergency. These bans are also forcing doctors to leave Idaho and other states because of laws that interfere with their ability to care for their patients. This should never happen in America.

Court Finds Idaho's Ban on Gender Affirming Care for Minors Unconstitutional

In Poe v. Labrador, (D ID, Dec. 26, 2023), an Idaho federal district court issued a preliminary injunction barring enforcement of Idaho's recently enacted Vulnerable Child Protection Act which prohibits medical providers from surgically or chemically treating gender dysphoria in minors. The court held that because the statute discriminates on the basis of sex and transgender status, it is subject to heightened scrutiny under the equal protection clause, and found that the statute likely fails that test, saying in part:

Generally, the State Defendants say the legislature’s purpose in passing HB 71 was to protect vulnerable children from the dangers of unproven medical and surgical treatments. At a general level, safeguarding the physical wellbeing of children is of course important.... But in this case, the Court finds that the asserted objective is pretextual, given that HB 71 allows the same treatments for cisgender minors that are deemed unsafe and thus banned for transgender minors. That is, the medications and procedures that are used in gender-affirming medical care (such as puberty blockers, hormones, and surgeries) are used to treat cisgender adolescents for other purposes. But rather than targeting the treatments themselves, HB 71 allows children to have these treatments—but only so long as they are used for any reason other than as gender-affirming medical care....

The court also found the likelihood of success on plaintiffs' due process claims, saying in part:

[T]his Court easily concludes that the parent plaintiffs enjoy a fundamental right to seek a specific form of medical treatment for their children, which would include the gender-affirming medical care banned by HB 71.

The court however did dismiss plaintiffs' unusual claim against the publisher of Idaho's annotated statutes. Plaintiffs had argued that by failing to include annotations to federal cases that would indicate that Idaho's statute is unconstitutional, the publishers violated plaintiffs' due process rights.

Los Angeles Blade reports on the decision.

Court Enjoins Idaho's Ban on Aiding a Minor in Obtaining an Abortion

In Matsumoto v, Labrador I, (D ID, Nov. 8, 2023), an Idaho federal district court issued a preliminary injunction against enforcing Idaho Code Section 18-623 which provides in part:

An adult who, with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion ... or obtains an abortion-inducing drug for the pregnant minor to use for an abortion by recruiting, harboring, or transporting the pregnant minor within this state commits the crime of abortion trafficking.

The court said in part:

The Court finds Idaho Code Section 18-623 is a content-based regulation of protected speech and expression. The statute plainly regulates expression based on content by restricting adults from engaging in activities that advocate, assist, and communicate information and support to pregnant minors about legal abortion options....

Here, Idaho Code Section 18-623 fails to provide fair notice or ascertainable standard of what is and what is not abortion trafficking. The terms “recruiting, harboring, or transporting” are undefined, overbroad, and vague, making it impossible for a reasonable person to distinguish between permissible and impermissible activities....

In Matsumoto v. Labrador II, (D ID, Nov. 8, 2023), the same court refused to dismiss plaintiffs' First Amendment speech and 14th Amendment vagueness challenges as well as their right to interstate travel claims. However the court did dismiss plaintiffs right to intrastate travel challenge.

Reuters reports on the preliminary injunction.

9th Circuit Stays Pending Appeal Feds' Partial Injunction Against Idaho Abortion Ban

In United States v. State of Idaho, (9th Cir., Sept. 28, 2023), the U.S. 9th Circuit Court of Appeals stayed, pending appeal, a district court's injunction barring enforcement of Idaho's abortion ban ("section 622") to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act (EMTALA). (See prior posting.) The appeals court said in part:

The Legislature has made a strong showing that EMTALA does not preempt section 622. EMTALA does not require abortions, and even if it did in some circumstances, that requirement would not directly conflict with section 622. The federal government will not be injured by the stay of an order preliminarily enjoining enforcement of a state law that does not conflict with its own. Idaho, on the other hand, will be irreparably injured absent a stay because the preliminary injunction directly harms its sovereignty.

Politico reports on the decision. [Thanks to Scott Mange for the lead.]

9th Circuit Affirms Preliminary Injunction Against Idaho's Ban on Transgender Women in School Sports

 In Hecox v. Little, (9th Cir., Aug. 17, 2023), the U.S. 9th Circuit Court of Appeals upheld a preliminary injunction issued by the district court barring enforcement of Idaho's ban on transgender women participating on women's sports teams.  The ban applies to public primary and secondary schools and public colleges, as well as to other schools that compete against public schools or colleges. The Act also creates a procedure for disputing the sex of a member of a women's team. The court said in part:

The district court did not err in concluding that heightened scrutiny applies because the Act discriminates against transgender women by categorically excluding them from female sports, as well as on the basis of sex by subjecting all female athletes, but no male athletes, to invasive sex verification procedures to implement that policy....

... [T]he Act sweeps much more broadly than simply excluding transgender women who have gone through “endogenous puberty.” The Act’s categorical ban includes transgender students who are young girls in elementary school or even kindergarten. Other transgender women take puberty blockers and never experience endogenous puberty, yet the Act indiscriminately bars them from participation in women’s student athletics, regardless of their testosterone levels....

Second, as the district court found, there was very little anecdotal evidence at the time of the Act’s passage that transgender women had displaced or were displacing cisgender women in sports or scholarships or like opportunities....

We must “reject measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn.”...

We agree with the district court that, contrary to the Act’s express purpose of ensuring women’s equality and opportunities in sports, the sex dispute verification process likely will discourage the participation of Idaho female students in student athletics by allowing any person to dispute their gender and then subjecting them to unnecessary medical testing and genital inspections. Because the Act’s means undermine its purported objectives and impose an unjustifiable burden on all female athletes in Idaho, the district court did not abuse its discretion by finding that the sex verification provision likely would not survive heightened scrutiny....

Judge Christen dissented in part, contending that the verification procedure discriminates on the basis of the team an athlete chooses to join, not on the basis of sex. She also contends that the trial court's injunction is not sufficiently specific or sufficiently tailored.  UPI reports on the decision.

Idaho AG's Interpretation of Anti-Abortion Law Is Enjoined

In Planned Parenthood Greater Northwest v. Labrador, (D ID, July 31, 2023), an Idaho federal district court granted a preliminary injunction barring the state attorney general from enforcing an interpretation of a law barring healthcare professionals from assisting in performing an abortion that would cover professionals who merely provide information about or refer patients for legal out-of-state abortions. The court said in part:

... [T]he Medical Providers allege that the Crane Letter interpretation violates the First Amendment, the dormant commerce clause, and the due process clause. The Medical Providers claim they are “overwhelmingly” likely to succeed on the merits of all three claims.... Interestingly, the State did not engage this argument in any way, relying instead entirely on its jurisdictional challenges.... As discussed below, the Court finds that the Medical Providers are likely to succeed on their First Amendment cause of action.

In particular, the Medical Providers contend that the Crane Letter interpretation violates the First Amendment because it impermissibly regulates speech based on content and viewpoint.... because health care providers are silenced on a single topic—abortion—and is viewpoint discretionary because health care providers can provide information and referrals about out-of-state resources like anti-abortion counseling centers or prenatal care....

... Because the State has not opposed the First Amendment claim, and because the Court finds the Medical Providers’ argument persuasive, the Court finds that the Medical Providers have shown that they are likely to succeed on the merits of their First Amendment challenge.

Reuters reports on the decision. [Thanks to Thomas Rutledge for the lead.]

State AG's Warn Target Corp. About Consequences of Its Pride Campaign

Earlier this week, the Indiana Attorney General, joined by the Attorneys General of Arkansas, Idaho, Kentucky, Mississippi, Missouri and South Carolina sent a joint letter (full text) to the CEO of Target Corp. complaining about the company's promotion and sale of products supporting Pride month. The states' legal officers suggested that Target may have violated state child-protection and parental rights laws.  It also suggests that Target has violated its duties to the states as shareholders of Target stock (presumably held in state pension funds).  The 5-page, heavily footnoted letter said in part:

As the chief legal officers of our States, we are charged with enforcing state laws protecting children and safeguarding parental rights.... 

In light of these responsibilities, we wish to communicate our concern for Target’s recent “Pride” campaign. During this campaign, Target wittingly marketed and sold LGBTQIA+ promotional products to families and young children as part of a comprehensive effort to promote gender and sexual identity among children...  Target also sold products with anti-Christian designs, such as pentagrams, horned skulls, and other Satanic products....

In connection with its “Pride” campaign, Target provides financial support to an organization called GLSEN (pronounced “glisten”). GLSEN furnishes resources to activists for the purpose of undermining parents’ constitutional and statutory rights by supporting “secret gender transitions for kids” and directing public schools to withhold “any information that may reveal a student’s gender identity to others, including [to] parents or guardians.”...

...Target’s directors and officers have a fiduciary duty to our States as shareholders in the company. The evidence suggests that Target’s directors and officers may be negligent in undertaking the “Pride” campaign, which negatively affected Target’s stock price. Moreover, it may have improperly directed company resources for collateral political or social goals unrelated to the company’s and its shareholders’ best interests....

We live in a different day and age from our nation’s founding. But certain immutable precepts and principles must always endure so long as America is to remain free and prosperous.

CBS News reports on the letter.

Idaho Legislature Cannot Intervene in Suit by U.S. Challenging Idaho's Abortion Ban In Emergency Situations

In United States v. State of Idaho, (D ID, Feb. 3, 2023), an Idaho federal district court refused to allow the Idaho legislature to intervene as a matter of right in a suit in which the U.S. Department of Justice is suing on a claim that Idaho's total abortion ban is preempted by federal law to the extent that it is contrary to the Emergency Medical Treatment and Labor Act.  The court concluded that the legislature has failed to show that the state's attorney general is inadequately representing the state's identical interest in defending the abortion ban.  The same court has previously issued a preliminary injunction against enforcing the ban against any medical provider or hospital that performs an abortion that is required as emergency treatment guaranteed by federal law. (See prior posting.) In that suit, the court permitted the legislature to permissively intervene on a limited basis.

Idaho Supreme Court Upholds Abortion Ban

 In Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky v. State of Idaho, (ID Sup. Ct., Jan. 5, 2023), the Idaho Supreme Court in a 3-2 decision upheld three Idaho statutes banning abortions.  The majority summarized its decision in part as follows:

The Idaho Constitution does not contain an explicit right to abortion. Nevertheless, Petitioners argue that certain provisions implicitly enshrine abortion as a right entitled to heightened protection from the legislature’s broad power to regulate conduct.....

For the reasons discussed below, we cannot read a fundamental right to abortion into the text of the Idaho Constitution. 

The Inalienable Rights Clause in Article I, section 1 of the Idaho Constitution, which lists the rights to life, liberty, and property, provides the textual basis for the recognition of implicit fundamental rights. Indeed, Article I, section 21, while not purporting to be a repository of implicit rights, provides that the listing of rights in the Idaho Constitution “shall not be construed to impair or deny other rights retained by the people.” The Inalienable Rights Clause was framed at Idaho’s constitutional convention in 1889 and ratified by the people of Idaho later that same year. Thus, for us to read a fundamental right into the Idaho Constitution, we must examine whether the alleged right is so “deeply rooted” in the traditions and history of Idaho at the time of statehood that we can fairly conclude that the framers and adopters of the Inalienable Rights Clause intended to implicitly protect that right.

When we apply that test to this dispute, there simply is no support for a conclusion that aright to abortion was “deeply rooted” at the time the Inalienable Rights Clause was adopted....

Importantly, nothing about this decision prevents the voters of Idaho from answering the deeply moral and  political question of abortion at the polls....

Additionally, as explained below, we conclude that the Total Abortion Ban, 6-Week Ban, and Civil Liability Law each pass the familiar test for determining the constitutionality of most legislation: “rational-basis” review. Under that form of review, each of these laws is constitutional because it is rationally related to the government’s legitimate interest in protecting prenatal fetal life at all stages of development, and in protecting the health and safety of the mother.

Justice Zahn and Justice Stegner each filed a dissenting opinion. [Thanks to Dusty Hoesly for the lead.]

Court Enjoins Idaho Abortion Ban When It Conflicts With Federal Emergency Treatment Requirement

In United States v. State of Idaho, (D ID, Aug. 24, 2022), an Idaho federal district court enjoined the state of Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act.  The court said in part:

[T]he State of Idaho, including all of its officers, employees, and agents, are prohibited from initiating any criminal prosecution against, attempting to suspend or revoke the professional license of, or seeking to impose any other form of liability on, any medical provider or hospital based on their performance of conduct that (1) is defined as an “abortion” under Idaho Code § 18-604(1), but that is necessary to avoid (i) “placing the health of” a pregnant patient “in serious jeopardy”; (ii) a “serious impairment to bodily functions” of the pregnant patient; or (iii) a “serious dysfunction of any bodily organ or part” of the pregnant patient, pursuant to 42 U.S.C. § 1395dd(e)(1)(A)(i)-(iii).

Idaho law permits an abortion only to save the life of the mother.  The Hill reports on the decision.

Idaho Supreme Court Refuses To Stop Effectiveness Of Abortion Bans

In Planned Parenthood Great Northwest v. State of Idaho,(ID Sup. Ct., Aug. 12, 2022), the Idaho Supreme Court, in a 3-2 decision, refused to issue a preliminary injunction to prevent enforcement while litigation is pending of a statute triggered by the overruling of Roe v. Wade imposing a near-total abortion ban, as well as of a six-week abortion ban. The court also vacated a preliminary stay it had previously issued barring enforcement of a law that creates civil liability in suits against persons performing abortions after a fetal heartbeat is detectable. Plaintiffs contend that the statutes violate various provisions of the Idaho constitution. The majority concluded that petitioners had not shown a substantial likelihood of success or violation of a clear legal right as to either of the statutes.

Justice Stegner, joined by Justice Zahn, dissented contending that it is sufficient that petitioners showed irreparable harm if a stay in not granted; they do not need to also show a likelihood of success. The dissent said in part:

The State and the Legislature’s only argument that irreparable harm will not result is that the Idaho Constitution does not protect the right to an abortion. This argument fails because it is premised on a decision we have not yet made.

Fox News reports on the decision.

University's No-Contact Orders To 3 Christian Students Violate Free Speech Rights

In Perlot v. Green, (D ID, June 30, 2022), an Idaho federal district court issued a preliminary injunction requiring the University of Idaho to rescind no-contact orders issued to three law students who are members of the Christian Legal Society and a limited-contact order issued to a faculty member who is the CLS advisor. Defendants were also barred from issuing future no-contact orders based on pure speech alone. The action, taken by the University because of its interpretation of Title IX provisions, were based on conversations or remarks by the students to a female LGBTQ student on the Christian biblical view of marriage and sexuality. The parties dispute the exact content of those remarks. The female student told university officials that she felt targeted and unsafe. The court said in part:

Defendants issued the no-contact orders to Plaintiffs because Plaintiffs discussed their sincerely held religious beliefs about marriage and because they discussed religious discrimination. Thus, it appears the no-contact orders apply to Plaintiffs because of the “message expressed.” ...

Similarly, Defendants’ orders targeted the viewpoint of Plaintiffs’ speech. Both students and professors expressed opposing viewpoints to the views expressed by Plaintiffs without any type of intervention, let alone punishment..... Thus, while all of these parties’ speech was on the same topic, only one viewpoint—Plaintiffs—was deemed worthy of intervention and discipline.....

Instead of focusing on sexual harassment, Defendants focus on harassment in general and argue that people have a right to be free from being bothered. Title IX does not provide such a right....

... The Court in Hill made a clear distinction between the right to attempt to persuade others to change their views and offensive speech that is so intrusive that the unwilling audience cannot avoid it. The right to free speech cannot be curtailed simply because the speaker’s message may be offensive to his audience....

In a footnote, commenting on a faculty member's statement that religious beliefs are not an excuse to deprive others of their rights, the court said:

Phrases such as this have taken root in recent years and paint an overtly negative picture of religious liberty. The assumption such phrases implicate is that people use their religion to mask discriminatory conduct and then try to “hide” from any legal consequences by invoking religious protection. The Court will not dissect why this assumption is a shallow look at religion, and fails to provide any substance to numerous individual constitutional rights. Suffice it to say, in a pluralistic society, people should honor differing viewpoints and build bridges of understanding instead of arguing that opposing viewpoints are inherently discriminatory and must be punished or excluded from the public square.