U.S. District Judge David G. Estudillo said in a Friday order that Leda Health Corp. has failed to raise serious questions that the law amounts to an illegal restriction on its commercial speech rights, repeating his reasoning from his ruling last fall that dismissed the company's case against the Washington governor and state attorney general. The law at issue, also known as House Bill 1564, bars the sale and distribution of "sexual assault kits that are marketed or otherwise presented as over the counter, at home, or do-it-yourself."
"First, the court is not persuaded that its First Amendment analysis was 'wrong'; it once more finds the statute is an economic regulation of a product and not a speech regulation," Judge Estudillo explained in his Friday order. He rejected the company's request to pause enforcement of the law while it appeals his Oct. 21 dismissal decision, which also denied Leda's initial motion for a preliminary injunction.
Washington Gov. Jay Inslee and state Attorney General Bob Ferguson, who was elected the state's next governor last fall, have defended the ban as a measure to protect Evergreen State residents from a product that would likely never be admissible as evidence in court and could deter survivors from seeking timely medical treatment for sexual assault.
With offices in New York and Pennsylvania, Leda offers an "early evidence kit" that allows sexual assault survivors to collect time-sensitive DNA themselves and submit it to a partner lab, then returns a report with the results. However, the company has ceased marketing and sales in Washington since receiving a cease-and-desist letter from Ferguson's office in October 2022.
Leda previously launched similar legal challenges against other state attorneys general who have sought to keep the kits off the market, including attorneys general in New York and Pennsylvania. The company contends that Judge Estudillo erred in tossing the case against Washington state, maintaining that the state's ban unconstitutionally curbs its commercial speech by preventing rape evidence collection kits from being marketed specifically to survivors for self-administration.
But Judge Estudillo doubled down on his prior finding and even went a step further in his Friday ruling, saying that even if Leda had raised legitimate questions about restraint of its commercial speech, the law still passes the test for regulating such speech under the U.S. Supreme Court's 1980 decision in Central Hudson Gas & Electric Corp. v. Public Service Commission
. The state has shown that the company's marketing efforts were potentially misleading and that the legislation was intended to serve the state's interest in protecting sexual assault victims, the judge said."By banning the sale and distribution of sexual assault kits marketed for at-home use, the statute dramatically reduces the odds that survivors will access at-home kits that may later be found inadmissible in court, otherwise hamper prosecution efforts, or serve as an inadequate stand-in for timely medical examination following an assault," the judge said.
Judge Estudillo also wrote that lawmakers had reasonably crafted the restriction, given that the "central issue the legislature sought to address stemmed from the very existence of the product in the stream of commerce."
"Accordingly, the scope of the law (a ban on the sale of sexual assault kits marketed for at home use) is sufficiently tailored to the end of preventing the use of such kits," the judge concluded. "It is not for the court to second-guess the legislature's identification of the problem itself — a matter that involved days of hearings and fact finding."
Representatives of the parties did not immediately respond to a request for comment on Monday.
Leda Health is represented by Jeffrey B. Coopersmith of Corr Cronin LLP and Alex Little, Zachary C. Lawson and John R. Glover of Litson PLLC.
The state is represented by Cristina Sepe, Tera M. Heintz and Lucy Wolf of the Washington State Office of the Attorney General.
The case is Leda Health Corp. v. Inslee et al., case number 2:24-cv-00871, in the U.S. District Court for the Western District of Washington.
--Additional reporting by Gianna Ferrarin and Corey Rothauser. Editing by Rich Mills.