Rossow v. Jeppesen

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Case 1:23-cv-00131-BLW Document 143 _ Filed 06/24/26 Page 1 of 22

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

KEEVA ROSSOW and SERAH Case No. 1:23-cv-00131-BLW
THOMPSON,
MEMORANDUM DECISION AND
Plaintiffs, ORDER
V.

JULIET CHARRON, Director, Idaho
Department of Health and Welfare, in
her official capacity,

Defendant.

INTRODUCTION

Plaintiffs Keeva Rossow and Serah Thompson, on behalf of the certified class,

challenge the Idaho Department of Health and Welfare’s enforcement of Idaho

Administrative Code Rule 16.06.01.563.02.a, which categorizes the prenatal use of a

controlled substance as a basis for substantiating child abuse or neglect and for placing an

individual on the Child Protection Central Registry for a minimum of ten years. Each

woman was substantiated for child abuse under the regulation after testing positive for

THC following the birth of her child, and each was placed on the Central Registry for a

minimum of ten years.

MEMORANDUM DECISION AND ORDER - 1

M EMORANDUM D ECISION AND O RDER - 2
Ms. Rossow and Ms. Thompson represent a class of Idaho women who currently
appear on the Registry for prenatal use of THC, as well as those women who may be
listed in the future. They allege that their and other class members’ continued or future
placement on the Registry violates the Due Process and Equal Protection Clauses of the
Fourteenth Amendment, and they seek to enjoin the Department from “either placing or
maintaining” class members’ names on the Registry. They also seek a declaration that
Rule 563.02.a is unconstitutional on its face and as applied.
Defendant Juliet Charron, sued in her official capacity as Director of the Idaho
Department of Health and Welfare, now moves for a second time to dismiss Plaintiffs’
claims. See Dkt. 124. The Director seeks dismissal of the complaint in its entirety on the
ground that it is barred by Eleventh Amendment immunity. Alternatively, she argues that
each remaining claim should be dismissed under Rule 12(b)(6) for failure to state a claim.
The motion presents four questions: whether the doctrine of Ex parte Young permits the
suit to proceed; whether the complaint plausibly alleges a denial of procedural due
process; whether it states a substantive due process claim; and whether it states an equal
protection violation. For the reasons that follow, the Court will grant the motion in part
and deny it in part.
BACKGROUND
The background of this case is set out at length in the Court’s prior decisions, and
only a brief account is needed here. In December 2021, Keeva Rossow tested positive for
THC after giving birth to her daughter. Ms. Rossow acknowledges that she used
marijuana during her pregnancy to alleviate physical and psychological symptoms. The
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Department substantiated a report of neglect, assigned a Child Protection Level Two
designation under Rule 563.02.a, and placed Ms. Rossow on the Registry for a minimum
of ten years. She pursued and exhausted administrative review, and the substantiation was
affirmed. Serah Thompson was substantiated in 2022 on materially similar facts after she
tested positive for THC at the birth of her daughter; she did not pursue administrative
review. Ms. Thompson’s listing, like Ms. Rossow’s, continues to constrain her
employment prospects.
Ms. Rossow filed this class action in March 2023, alleging due process and equal
protection violations under 42 U.S.C. § 1983, as well as violations of the Idaho
Constitution. The Director filed a motion to dismiss, which was granted in part and
denied in part. The Court dismissed the vagueness claim with prejudice, and the equal
protection and state-law claims with leave to amend. See Dkt. 24. The Court denied the
motion to dismiss the procedural and substantive due process claims. The Court later
dismissed the state-law claims as barred by the Eleventh Amendment. See Dkt. 68.
Ms. Rossow subsequently amended her complaint, adding Ms. Thompson as a
named plaintiff and supplementing allegations. On March 15, 2025, the Court certified a
class defined as all women now appearing on the Registry under Rule 563.02.a for THC
use while pregnant, together with all women whom the Department will in the future
substantiate and list under that rule on the same basis. See Dkt. 86 at 31. The operative
complaint is the Verified Second Amended Complaint. See Dkt. 92. The Director then
filed this second motion to dismiss, which seeks dismissal of all remaining claims under
Rules 12(b)(1) and 12(b)(6). See Dkt. 124.
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LEGAL STANDARD
To survive a motion under Rule 12(b)(6), a complaint must plead “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “On a Rule 12(b)(6) motion to dismiss, the court accepts the facts
alleged in the complaint as true, and dismissal can be based on the lack of a cognizable
legal theory or the absence of sufficient facts alleged.” Yoshikawa v. Seguirant, 41 F.4th
1109, 1114 (9th Cir. 2022). The Court draws all reasonable inferences in the plaintiff’s
favor, but it need not credit legal conclusions dressed up as factual allegations. See Iqbal,
556 U.S. at 678.
The Director’s sovereign immunity defense is “quasi-jurisdictional” and may be
raised under either Rule 12(b)(1) or Rule 12(b)(6). Sato v. Orange Cnty. Dep’t of Educ.,
861 F.3d 923, 927 n.2 (9th Cir. 2017). Because the Director’s immunity argument raises
a “facial attack” and does not rest on a disputed fact, the standards are materially the
same for purposes of this motion, and which standard applies “makes no difference.” See
Sam v. Dep't of Pub. Safety, No. CV 20-00164 SOM-RT, 2021 WL 1032282, at *2 (D.
Haw. Mar. 17, 2021); see also, e.g., Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir.
2014) (it has been recognized that “[t]he district court resolves a facial attack as it would
a motion to dismiss under Rule 12(b)(6): [a]ccepting the plaintiff's allegations as true and
drawing all reasonable inferences in the plaintiff's favor, the court determines whether the
allegations are sufficient as a legal matter to invoke the court's jurisdiction.”). The Court
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limits itself to examination of the factual allegations of the complaint, interpreting them
in the light most favorable to Plaintiffs. Id.
ANALYSIS
A. 	Sovereign Immunity
The Eleventh Amendment shields unconsenting States from suit in federal court.
Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007). This immunity extends to state
officials sued in their official capacities under 42 U.S.C. § 1983, as such a suit “is no
different from a suit against the State itself.” Id. But the rule has a “vital exception.”
Under Ex parte Young, 209 U.S. 123 (1908), a plaintiff may sue a state official for
prospective relief to halt an ongoing violation of federal law. In determining whether the
Ex parte Young exception applies, “a court need only conduct a straightforward inquiry
into whether the complaint alleges an ongoing violation of federal law and seeks relief
properly characterized as prospective.” Verizon Md. Inc. v. Pub. Serv. Comm’n of Md.,
535 U.S. 635, 645 (2002). “Under this principle, a plaintiff may seek ‘prospective
injunctive relief that governs the official’s future conduct,’ but not ‘retroactive relief that
requires the payment of funds from the state treasury.’” Jensen v. Brown, 131 F.4th 677,
696 (9th Cir. 2025) (quoting Nat'l Res. Def. Council v. Cal. Dep't of Transp., 96 F.3d
420, 422 (9th Cir. 1996)).
The Director contends that the Ex parte Young exception does not apply because
Plaintiffs bring their claims based on a past event, namely their past substantiations and
listings, and the relief they seek is impermissibly “reparative,” aimed solely at
compensating Plaintiffs for the “lingering effects” of these past substantiations. The
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Court disagrees. As the Ninth Circuit has made clear, “Ex parte Young does not demand
that the relief sought be unrelated to past violations.” Jensen, 131 F.4th at 697; see also
Cardenas v. Anzai, 311 F.3d 929, 938 (9th Cir. 2002) (“The fact that the plaintiffs' claims
depend in part upon past conduct by the state…is not dispositive.”). “Rather, a plaintiff
may pursue relief that would relate to a past violation, so long as it would not amount to
relief solely for the past violation.” Id. (quoting Doe v. Lawrence Livermore Nat'l Lab'y,
131 F.3d 836, 841 (9th Cir. 1997) (quotation marks and brackets omitted)).
In Jensen, the Ninth Circuit held that expungement of negative performance
evaluations and letter of reprimand from a mathematics professor’s personnel file
constituted prospective relief, even though the negative records were placed in the file as
a result of the school administrators’ alleged past constitutional violations. Id. at 697.
Jensen alleged that the school administrators issued the reprimand and negative
performance evaluations in retaliation for his engaging in speech protected by the First
Amendment. Such alleged violation was “ongoing,” the court explained, as long “as the
retaliatory records continue[d] to exist in Jensen’s personnel file,” where their presence
posed an “obvious threat” to his “career advancement.” Id. at 698. Expungement would
end this ongoing violation. Thus, the expungement of the negative records did not
amount “solely to relief for a past violation” because its goal was not to compensate him
for a past wrong but to compel the school administrators “to cease [their] actions in
violation of federal law and to comply with constitutional requirements.” Id. at 697.
The reasoning of Jensen controls here. Plaintiffs do not seek damages or any
remedy measured by a past loss; they seek removal from the Child Protection Central
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Registry and an injunction against the rule’s enforcement going forward. Like the
negative personnel-file records in Jensen, placement on the Registry is “unquestionably
stigmatizing” and imposes a tangible burden on a listed individual’s ability to obtain
employment, licenses, and other benefits. See Dkt. 24 at 6–8 (citing Humphries v. County
of Los Angeles, 554 F.3d 1170, 1186–88 (9th Cir. 2009)). And just as in Jensen, the
alleged violations at issue here remain ongoing for as long as class members’ names
appear on the Registry. Because an injunction directing the removal of class members’
names from the Registry would put an end to this ongoing violation and would prevent
present and future harm to them, such relief cannot be characterized solely as retroactive
and is not barred by the Eleventh Amendment. Id. See also Flint, 488 F.3d at 825.
This conclusion is reinforced by the composition of the certified class, which
includes not only women now listed but also all women whom the Department will
substantiate and list under Rule 563.02.a in the future. See Dkt. 86 at 31. As to those
women, the Director’s argument fails on its own terms. The Department’s future
application of the rule cannot be described as a completed act with lingering effects, and
a suit to enjoin a state official from enforcing an allegedly unconstitutional rule going
forward is a paradigmatic application of Ex parte Young. Whatever else may be said
about the named Plaintiffs’ own substantiations, the class claims encompass the ongoing
and threatened enforcement of the rule itself.
Bird v. Department of Human Services, 935 F.3d 738 (9th Cir. 2019) does not
compel a different result. In Bird, the Ninth Circuit considered whether plaintiff’s claim
alleging due process violations arising from her listing on the state’s child abuse registry
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was barred by the applicable statute of limitations. In affirming the dismissal of Bird’s
due process claim as untimely, it held that Bird’s listing on the state’s child abuse registry
without due process did not constitute a “continuing violation” for purposes of extending
the limitations period. Although Bird’s injuries resulting from her placement on the
registry continued “to the present day,” that “continuing effect [was] insufficient to
constitute a continuing violation.” Id.
Admittedly, at first glance, this holding would appear to support the Director’s
contention that Plaintiffs have failed to allege an “ongoing violation.” But, as one court
observed, “the similarity of these shorthand terms belies a fundamental difference in the
underlying doctrines[.]” Johnson v. Jessup, 381 F. Supp. 3d 619, 636 n.19 (M.D.N.C.
2019). The “continuing violation” exception to the statute of limitations “is occasioned
by continual unlawful acts, not by continual ill effects from an original violation.” Garcia
v. Brockway, 526 F.3d 456, 462 (9th Cir. 2008). By comparison, the “ongoing violation”
requirement of Ex parte Young is satisfied if the relief sought would “serve the purpose
of preventing present and future harm,” even if that relief relates to a past violation. See
Flint, 488 F.3d at 825. These are distinct inquiries serving different ends. Id. For this
reason, Bird’s holding about when a damages claim accrues says little about whether a
federal court may enjoin a state official’s ongoing maintenance of an allegedly
unconstitutional listing.1
1 The Director’s analogy to a criminal conviction (Mot. 7) illustrates the difficulty rather than resolving it. A
conviction is the judgment of a court, entered after a proceeding with the full apparatus of criminal process and
reviewable by direct appeal and collateral attack. A Registry listing is an administrative designation that the
Department itself creates, maintains, and discloses, and that no court has reviewed. The burglar in the Director’s
hypothetical may not relitigate his conviction through § 1983, but that is because the conviction—not a clerk’s later
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The Director’s reliance on Filyaw v. Corsi, 150 F.4th 936 (8th Cir. 2025) is
equally misplaced. In Filyaw, a divided Eighth Circuit panel held that a challenge to a
one-time, constitutionally deficient Medicaid pre-termination notice sought retrospective
relief, because the plaintiff’s loss of coverage was the effect of a discrete past act. As
applied to the named Plaintiffs’ challenges to the process attending their own
substantiations—events fixed at discrete points in the past—that reasoning has some
force. But Filyaw represents a minority view that does not bind this Court. Six circuits,
including the Ninth Circuit, hold that there is an ongoing constitutional violation for
purposes of Ex parte Young when a state deprives an individual of property without due
process unless and until the property has been restored or the state has provided
constitutionally sufficient process. See K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962 (9th
Cir. 2015); Cooperrider v. Woods, 127 F.4th 1019 (6th Cir. 2025); Sherwood v.
Marchiori, 76 F.4th 688 (7th Cir. 2023); Coakley v. Welch, 877 F.2d 304 (4th Cir. 1989);
Lewis v. New Mexico Dep't of Health, 261 F.3d 970 (10th Cir. 2001); Russell v. Dunston,
896 F.2d 664, 665 (2d Cir. 1990).
In K.W., the Ninth Circuit upheld a classwide injunction restoring Medicaid
participants to the individualized budgets they held before the State issued allegedly
defective notices, explaining that the injunction “grants only prospective relief allowed
under the Eleventh Amendment” because it did not compensate class members for past
losses. Id. at 974–75. The Director seeks to distinguish K.W. on the ground that the
report of it—worked the deprivation, and because adequate process attended it. Whether adequate process attended
these listings is the merits question the Court does not reach here.
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violation there recurred through an annual budget recalculation, whereas here, she says,
nothing is recalculated. But the distinction does not aid her. The State in K.W. repeatedly
applied an allegedly defective methodology; the Department here repeatedly gives effect
to an allegedly defective listing, maintaining each class member on the Registry and
disclosing her as a risk to children. As such, Plaintiffs’ continued listing is ongoing
conduct within the reach of Ex parte Young.
The Director makes one further argument. She contends that because no named
Plaintiff has a live claim, the class claims must fall with them. The premise fails: the
named Plaintiffs do have live claims, because each remains listed under the rule the
Department continues to enforce. And even if their individual claims were in doubt, the
certified class independently includes women the Department will substantiate in the
future, as to whom Ex parte Young plainly applies. In short, the complaint alleges an
ongoing violation of federal law and seeks prospective relief. The Eleventh Amendment
does not bar the suit, and the motion is denied to the extent it rests on the Director’s
sovereign immunity.
B. 	Procedural Due Process
The Director next argues that the Department’s enforcement of Rule 563.02.a
satisfies due process, pointing to the 2025 amendments to the IDAPA rules that revised
the administrative review process. The Director contends these amendments address each
of the concerns the Court identified in its prior decision.
The 2025 amendments do not warrant dismissal at this stage. The certified class
includes all women currently appearing on the Central Registry under Rule 563.02.a—
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among them the named Plaintiffs and the class members who were substantiated and
listed under the rules in effect before July 2025. See Dkt. 86 at 31. As to those women,
the process the Court evaluated in its prior decision is the process they actually received,
and the Court has already concluded that the complaint plausibly alleges that process
created a considerable risk of erroneous deprivation without adequate safeguards. Dkt. 24
at 9–12. Amendments that took effect years after those listings did not supply the process
those class members allegedly were denied, and the Director identifies nothing in the
amended rules that revisits or cures their existing listings.
The amended rules may well bear on the claims of women substantiated after July
2025 and on the scope of any prospective relief. But whether the current process satisfies
the balancing test of Mathews v. Eldridge, 424 U.S. 319, 335 (1976), is a question the
Court need not resolve on this motion. The parties dispute how the amended rules operate
in practice, discovery has not yet been taken on that question, and the Court has
consolidated the preliminary injunction motion with a trial on the merits. Dkt. 111.
Taking the allegations of the Second Amended Complaint as true, Plaintiffs have stated a
plausible procedural due process claim. The motion to dismiss that claim is denied.
C. 	Substantive Due Process
The Director also seeks dismissal of Plaintiffs’ substantive due process claim for a
second time. She reads the substantive due process claim to rest on a single asserted right:
the “fundamental right to use THC while pregnant.” So framed, the claim fails to the
extent it depends on the application of strict scrutiny. As the Court explained in its prior
decision, “federal law does not recognize a fundamental right to use medical
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marijuana…to alleviate excruciating pain and human suffering.” See Dkt. 24 at 15
(quoting Raich v. Gonzales, 500 F.3d 850, 866 (9th Cir. 2007)).
Plaintiffs respond that they never asserted a right to use THC; they say the
complaint pleads facts supporting other theories—enumerated rights under the First,
Fourth, and Fifth Amendments and unenumerated rights of privacy, autonomy, and
bodily integrity, including what they describe as the right not to have a single body
divided by legal fiction into “two persons.” See Dkt. 132 at 13. They invoke the rule that
a complaint may not be dismissed for an “imperfect statement of the legal theory
supporting the claim,” so long as it pleads facts plausibly entitling them to relief on some
viable theory. Johnson v. City of Shelby, 574 U.S. 10, 11 (2014).
Contrary to Plaintiffs’ argument, they cannot expand the universe of asserted
rights a without specifically articulating those rights. The Supreme Court explicitly
requires “a careful description of the asserted right.” Reno v. Flores, 507 U.S. 292, 302
(1993) (cleaned up). This requires the Court “to focus on the allegations in the
complaint” to determine how Plaintiffs describe the fundamental right at stake, and how
the Department’s regulation allegedly infringes on that right. Collins v. City of Harker
Heights, Tex., 503 U.S. 115, 125 (1992).
Just as alleged in the original complaint, Plaintiffs allege the Department’s
enforcement of its regulation violates their “substantive due process rights relating to
procreation, personal autonomy, bodily autonomy, and privacy during pregnancy[.]”
Compare Dkt. 92 ¶¶ 103, 105 with Dkt. 1 ¶¶ 38, 40. Based on these same allegations, the
Court previously determined that “the fundamental right at issue is better characterized as
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the right to bodily autonomy and integrity.” See Dkt. 24 at 15. Analogizing Ms. Rossow’s
use of marijuana to alleviate her pregnancy symptoms to the plaintiff in Raich using it to
alleviate suffering from her health conditions, the Court found that Raich necessarily
foreclosed the argument that “[a] fundamental right is implicated by the Department’s
regulation.” Id. at 15–16. None of the new allegations in the operative amended
complaint lead the Court to a different conclusion.
Conversely, none of the Director’s renewed arguments in support of her motion to
dismiss persuade the Court to revisit its earlier conclusion allowing the substantive due
process claim to proceed under rational basis review. Id. at 16. The absence of a
fundamental right does not end the analysis; it merely sets the standard of review at
rational basis, as the Court’s prior decision makes clear. Rational-basis review, though
deferential, “is not a toothless one.” Mathews v. De Castro, 429 U.S. 181, 185 (1976).
The Court previously held that the complaint plausibly alleged a mismatch between the
interest the Director invokes—protecting “preborn life” from “the dangers of drugs”—
and a Registry that Idaho law establishes to protect existing children from those who have
abused, neglected, or abandoned them, given that the Child Protective Act defines a
“child” as a person “under the age of eighteen.” Dkt. 24 at 16–17 (quoting Idaho Code §
16-1602(10)). Plaintiffs now plead that same theory with more factual support, and the
Director offers no persuasive reason to abandon the Court’s earlier reasoning.
The Director’s one new argument does not change the analysis. She stresses that
each named Plaintiff was substantiated only after her child was born—Ms. Rossow
twelve days after, Ms. Thompson during her postpartum recovery—and infers that the
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rule therefore aims to protect children after birth. But the timing of the substantiation
does not resolve the asserted mismatch, because the conduct the rule categorizes is
prenatal use, and a registry entry recorded after the child is born does little, on the face of
these allegations, to advance the protection of that child or of any other. Whether the rule
ultimately survives rational basis review is a question for a developed record.
D. 	Equal Protection
Plaintiffs, however, still fail to plausibly allege an equal protection violation. They
contend that Rule 563.02.a denies equal protection because it burdens women, as
“mothers,” for conduct during pregnancy while imposing no comparable burden on men,
as “fathers.” The Director responds that the rule classifies on the basis of pregnancy—a
physical condition—rather than sex, and therefore triggers only rational basis review.
As the Court recognized in resolving the Director’s first motion to dismiss, the
Supreme Court does not treat pregnancy as a gender-based classification. See Dkt. 24 at
20 (citing Toomey v. Clark, 876 F.2d 1433, 1437 (9th Cir. 1989) (citing Geduldig v.
Aiello, 417 U.S. 484, 496 n.20 (1974) (“[U]nder equal protection cases, [pregnancy]
classifications are not gender based.”)). A pregnancy-based classification therefore
escapes heightened scrutiny absent a showing the distinction is “a mere pretext[]
designed to effect an invidious discrimination against the members of one sex or the
other.” Geduldig, 417 U.S. at 496 n.20. To allege pretext, a plaintiff must plead facts
suggesting the regulation has a discriminatory effect and that it was adopted with a
discriminatory intent or purpose. Toomey, 876 F.2d at 1437. “Discriminatory purpose”
implies more than awareness of consequences; it requires that the decisionmaker chose
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the challenged course “at least in part because of, not merely in spite of, its adverse
effects upon an identifiable group.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279
(1979) (cleaned up).
In its prior decision, the Court found that the original complaint pleaded
discriminatory impact but alleged no facts from which discriminatory intent could be
inferred. See Dkt. 24 at 21. The Court granted leave to amend to allow Plaintiffs to plead
such facts. Plaintiffs identify paragraphs 67 through 89 of the Second Amended
Complaint as supplying the missing intent allegations. Taken together, those paragraphs
allege that the rule disparately impacts women and rely on a set of asserted
inconsistencies, historical background, and stereotyped expectations of women as
mothers said to expose the rule as a pretext for sex discrimination. None of these
allegations, alone or together, supports a plausible inference that the Department adopted
Rule 563.02.a because of, rather than in spite of, its effect on women.
Plaintiffs’ new allegations include few facts. Paragraphs 67–76 merely recite the
law concerning invidious discrimination and discriminatory intent. The disparate-impact
allegations simply describe the regulatory scheme and establish that the rule burdens
women and not men, because only women become pregnant and can prenatally expose a
fetus. See Dkt. 92 ¶¶ 77–78. At best, these allegations merely restate the disparate impact
theory the Court previously found insufficient. As for those allegations specifically
directed at “pretext,” such allegations consist primarily of conclusory assertions and legal
conclusions. Id. at ¶¶ 79–89.
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Setting aside the conclusory framing, the pretext allegations reduce to a handful of
concrete contentions: that the rule lacks express statutory authority, is inconsistent with
the statutory definition of "child," penalizes women without a criminal conviction,
reaches controlled substances but not alcohol or tobacco, and imposes a penalty that
neither remedies past harm nor identifies less restrictive alternatives. See Dkt. 92 ¶¶ 80–
85. Each is directed at the fit between the rule and its asserted justification—matters
relevant, if at all, to rational basis review—not at whether the Department harbored a
purpose to discriminate against women. The asserted under-inclusiveness in failing to
include alcohol and tobacco is especially weak as evidence of intent: the line the rule
draws tracks Idaho's pre-existing schedules of controlled substances, see Idaho Code §
37-2701(e), rather than any classification gerrymandered around sex.
To the extent Plaintiffs rely on the history that “lurks” behind the promulgation of
the rule to show pretext, these allegations fare no better. Plaintiffs trace a sequence
beginning with a 1991 Attorney General opinion observing that the Child Protective Act
did not then reach gestational drug use, continuing through the failure of bills in 2005 and
2006 that would have criminalized prenatal drug use, and culminating in the
Department’s promulgation of Rule 563.02.a in 2007. See Dkt. 92 ¶¶ 30–48, 89. Taken as
true, that history reflects a sustained state interest in addressing the prenatal exposure of
children to controlled substances. An interest in deterring such exposure is not a purpose
to disadvantage women; that women alone bear the resulting burden again follows from
the fact that only a pregnant woman can cause the exposure. The Attorney General’s
opinion and the failed bills were, moreover, the work of actors other than the Department,
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and Plaintiffs allege no facts connecting them to the purpose with which the Department
adopted the rule in 2007. At most, the pleaded history is consistent with the State having
acted in spite of the rule’s effect on women—which Feeney holds is not enough. 442 U.S.
at 279.
That leaves the allegations that the rule reflects “stereotyped expectations” of
“mothers-to-be” and serves as a “pretext for shaming” women who fall short of them. See
Dkt. 92 ¶¶ 79, 88. Plaintiffs rely on United States v. Virginia, 518 U.S. 515, 533–34
(1996), and Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 729, 736
(2003), for the principle that the State may not perpetuate the “legal, social, and
economic inferiority of women” or act on “the pervasive presumption that women are
mothers first, and workers second.” But Virginia and Hibbs condemned classifications
that explicitly drew lines by sex or rested on overbroad generalizations about women’s
proper roles; they do not relieve a plaintiff challenging a pregnancy classification of the
obligation to plead facts showing that the classification is a pretext for sex discrimination.
Still, Plaintiffs’ stereotype allegations are conclusory, and the facts offered to
anchor them—rising infant and maternal mortality in Idaho and the 2023 disbanding of
the State’s Maternal Mortality Review Committee, id. ¶¶ 87–88—postdate the rule’s
2007 adoption by more than a decade and shed no light on the purpose with which it was
promulgated. Simply put, even accepting the well-pleaded facts as true and drawing all
reasonable inferences in Plaintiffs’ favor, Plaintiffs still fail to allege any basis for finding
discriminatory intent. Thus, intermediate scrutiny does not apply under this theory.
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Plaintiffs offer a second route to heightened scrutiny. They attempt to reframe the
rule’s classification as creating a facial gender classification “mothers” and “fathers,”
taking invidiousness out of the equation. In contrast to pregnancy-based classifications,
the Supreme Court holds laws tied to the sex of the parent “differentiate based on gender,
and therefore attract heightened review[.]” Sessions v. Morales-Santana, 582 U.S. 47, 58
(2017).
In Morales-Santana, the Supreme Court invalidated, on equal protection grounds,
a statute that imposed different physical-presence requirements on unwed mothers and
unwed fathers seeking to confer citizenship to a child born abroad. 582 U.S. at 54. The
statute's gender classification was stark: to confer citizenship to a child born abroad,
mothers needed to have been physically present in this country for one year while fathers
were required to have been here for ten. The Court found the statute rested on “the
obsolescing view that unwed fathers are invariably less qualified and entitled than
mothers to take responsibility for nonmarital children.” Id. at 62–63 (cleaned up). It
therefore applied heightened scrutiny to the law because it differentiated on the basis of
gender between unmarried mothers and fathers who were otherwise similarly situated.
Here, Plaintiffs argue the Department has redefined “parenthood” to include the
prenatal period by “deeming embryos and fetuses to be ‘children’ for purposes of [the
rule].” See Dkt. 92 ¶ 60. Yet, the rule “applies only to a woman as ‘mother’ prenatally
while [the rule] does not apply to a man as a ‘father’ until after his child has been born.”
See Dkt. 132 at 26. Like the statute in Morales-Santana, they argue the rule embodies the
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same “anachronistic” and “obsolescing views” that treat only the woman as responsible
for the wellbeing of the fetus. See Dkt. 92 ¶ 65.
“Any law premised on generalizations about the way women are—or the way men
are—will fail constitutional scrutiny because it serves no important governmental
objective.” Free the Nipple-Fort Collins v. City of Fort Collins, Colorado, 916 F.3d 792,
801 (10th Cir. 2019) (cleaned up). As the Supreme Court has explained, such
generalizations “have a constraining impact, descriptive though they may be of the way
many people still order their lives.” Morales-Santana, 582 U.S. at 63. They “may create
a self-fulfilling cycle of discrimination that forces women to continue to assume the role
of primary family caregiver.” Id. at 63 (cleaned up) (quoting Hibbs, 538 U.S. at 736).
On the other hand, “[p]hysical differences between men and women are
enduring.” Virginia, 518 U.S. at 533. And in some cases, such differences justify
differential treatment. See, e.g., Nguyen v. INS, 533 U.S. 53, 58–59 (2001). Such is the
case here. Morales-Santana condemned a distinction resting on a stereotype about which
parent would bear responsibility; the line here rests on biological reality that only women
can become pregnant and expose a fetus prenatally to a controlled substance. As to that
fact of biology, mothers and fathers are not similarly situated, and “gender-specific terms
can mark a permissible distinction” when they track a real difference rather than a
stereotype. Nguyen, 533 U.S. at 73; see also Lehr v. Robertson, 463 U.S. 248, 260 n.16
(1983) (“The mother carries and bears the child.”).
Nor does the timing of the administrative substantiation transform a pregnancy
classification into a sex classification. The fact that fixes the categorization is the prenatal
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exposure—regardless of whether the Department records the substantiation before or
after delivery. And the Supreme Court has explained that the regulation of a condition
only one sex can experience does not trigger heightened scrutiny absent invidious
purpose; just as “the goal of preventing abortion does not constitute invidiously
discriminatory animus against women,” Dobbs v. Jackson Women’s Health Org., 597
U.S. 215, 236 (2022) (cleaned up), neither does an interest in preventing prenatal
exposure to controlled substances. Because the rule does not classify by gender and
Plaintiffs have not pleaded pretext, rational basis review governs.
“Under the rational basis test, [a government act] survives an equal protection
challenge ‘if there is a rational relationship between the disparity of treatment and some
legitimate governmental purpose.’” United States v. Ayala-Bello, 995 F.3d 710, 715 (9th
Cir. 2021) (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)). Because only pregnant
women can expose a fetus to a controlled substance prenatally, pregnant and non-
pregnant people are not similarly situated. See Michael M. v. Superior Court, 450 U.S.
464, 469 (1981); Dkt. 24 at 22–23. As such, Plaintiffs have not stated an equal protection
claim.
Finally, the question remains whether to dismiss the equal protection claim with or
without leave to amend. The Court already gave Plaintiffs leave to cure the very defect
that persists—the absence of facts showing discriminatory intent. That effort, though
substantial, does not plead intent, and Plaintiffs identify no further facts that would. On
this record, another round of amendment would be futile. See Garmon v. County of Los
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Angeles, 828 F.3d 837, 842 (9th Cir. 2016) (leave may be denied where amendment
would be futile). The equal protection claim is therefore dismissed with prejudice.
E. 	Remaining Claims
The Director also moves to dismiss any vagueness or state-law claims that the
Second Amended Complaint may re-allege. The Court previously dismissed the
vagueness claim without leave to amend and dismissed the state-law claims. See Dkts.
24, 68. To the extent the operative complaint repleads those claims to preserve them for
appeal, that step was unnecessary, see Lacey v. Maricopa County, 693 F.3d 896, 928 (9th
Cir. 2012) (en banc), and the Court reaffirms its prior rulings. The vagueness claim
remains dismissed with prejudice, and the state-law claims remain dismissed as barred by
the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89
(1984).
ORDER
IT IS ORDERED that the Director’s second Motion to Dismiss (Dkt. 124) is
GRANTED in part and DENIED in part. Plaintiffs’ equal protection claim, vagueness
claim, and state-law claims are dismissed with prejudice.
DATED: June 24, 2026
_________________________
B. Lynn Winmill
U.S. District Court Judge
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