Leda Health Corp. on Wednesday moved for a preliminary injunction declaring the new state law unconstitutional in its case against Gov. Jay Inslee, arguing that lawmakers crafted the legislation to bar the company from offering its product to Washingtonians solely because the state disagrees with the company's mission of providing kits to rape survivors who might not otherwise be willing or able to use traditional reporting channels.
"This case is ultimately about a difference of opinion: Leda Health believes sexual assault survivors need resources beyond what the government offers," the company said. "The state of Washington does not. So, Washington passed a law to suppress Leda Health's message that sexual assault testing kits can help survivors and protect communities."
The company, a Delaware corporation with offices in New York and Pennsylvania, makes an "early evidence kit" that allows sexual assault survivors to collect time-sensitive DNA themselves and submit it to one of Leda's partner labs, then returns a report with the results. But Leda said it has stopped marketing or selling its kit in Washington since the state threatened enforcement action.
The company's June 17 lawsuit comes amid a larger push by attorneys general in states including New York and Pennsylvania to keep the kits off the market based on concerns that sexual assault survivors would likely be misled into assuming the results would be admissible as evidence in court.
But Leda has maintained it's supplementing the options available to sexual assault survivors to help those who might avoid the traditional rape kit process because of privacy or safety concerns or distrust of law enforcement. The company has also pointed to the disclosures on its website saying it cannot guarantee any kit results will be admissible in court.
Washington state sent Leda a cease-and-desist letter in October 2022, accusing the company of making "patently false" representations about the kits' viability in court proceedings and demanding that it stop all marketing and sales in the Evergreen State.
"Leda's website claims, '[w]e believe though that courts should admit our kit results, especially if all our protocols are followed,'" the state attorney general's office wrote in the letter. "Leda's beliefs cannot overcome the fact that self-administered sexual assault kits have rarely, if ever, been successfully introduced in a criminal court in Washington state."
In the letter, provided to Law360 by a spokesperson for state Attorney General Bob Ferguson's office, the office's consumer protection division also said it was investigating Leda's sale of the kits and demanded related information from the company. Ferguson is named as a defendant in Leda's lawsuit alongside Inslee.
In May 2023, Inslee signed H.B. 1564, which prohibits the sale or offering of any "over-the-counter sexual assault kit" that "purports to allow an individual to independently collect evidence of a sexual assault outside of a collecting facility."
Leda contends it's called out by name in the bill, citing an accompanying fiscal note that says the consumer protection division is only aware of one company that offers such kits. In its motion, Leda also pointed to an email in which a state representative backing the bill names the company and shares with colleagues a link to critical press coverage.
"The clear message of the statute is that sexual assault kits administered by law enforcement or healthcare workers are better than those survivors might administer themselves," the company said. "In addition to being demonstrably untrue, enshrining that viewpoint in law and banning commercial speech to the contrary runs afoul of fundamental First Amendment principles."
Leda argued that the state has no compelling interest in stopping sexual assault survivors from using its kits. The company also said the state failed to consider less restrictive measures than outright banning commercial speech, such as amending the state's rules of evidence to regulate the use of self-collected DNA in court proceedings or passing a law with stricter disclaimer requirements.
Alex Little of Litson PLLC, counsel for Leda, said the company is seeking an injunction because the law is "plainly unconstitutional" and is violating its right to free speech in Washington on a daily basis.
"This is a case about speech. And throughout the passage of this legislation, the state and the sponsors of this legislation have misrepresented both the law and the facts," Little said. "We look forward to setting the record straight with the district court."
In a statement, Ferguson said the law passed with "overwhelming bipartisan support."
"My office will vigorously defend this important state law," Ferguson said. "Sexual assault survivors should know that they are not alone — critical services to help them seek justice are available from trained medical professionals, at no cost."
At least 16 other states have sent similar cease-and-desist letters to Leda, formerly known as Me Too Kits, a spokesperson for Ferguson's office said.
A spokesperson for the state declined to comment Thursday.
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.
Counsel information for the state was not immediately available.
The case is Leda Health Corp. v. Jay Inslee et al., case number 2:24-cv-00871, in the U.S. District Court for the Western District of Washington.
--Additional reporting by Corey Rothauser. Editing by Dave Trumbore.
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