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McCormack v. Herzog

United States Court of Appeals, Ninth Circuit

May 29, 2015

JENNIE LINN MCCORMACK, Plaintiff-Appellee,
v.
STEPHEN F. HERZOG, Bannock County Prosecuting Attorney, Defendant-Appellant RICHARD HEARN, M.D., on his own behalf and on behalf of his patients, Intervenor-Plaintiff-Appellee,

Argued and Submitted, Pasadena, California July 18, 2014.

As Amended June 1, 2015.

Page 1018

[Copyrighted Material Omitted]

Page 1019

[Copyrighted Material Omitted]

Page 1020

Appeal from the United States District Court for the District of Idaho. D.C. No. 4:11-cv-00433-BLW. B. Lynn Winmill, Chief District Judge, Presiding.

SUMMARY[**]

Civil Rights

The panel affirmed the district court's summary judgment for plaintiffs in an action brought pursuant to 42 U.S.C. § 1983 challenging the Pain-Capable Unborn Child Protection Act, which regulates the performance of abortions in Idaho.

Plaintiff, Jennie McCormack, was criminally charged with violating Idaho Code § 18-606, for knowingly submitting to an abortion not authorized under the statute, or purposely self-terminating a pregnancy. After the criminal complaint was dismissed without prejudice by a state court, McCormack brought a class action in federal court against the prosecuting attorney, who subsequently offered McCormack transactional immunity from prosecution for the alleged abortion, which she declined. McCormack's attorney, Dr. Hearn, who is also a licensed physician, intervened in the action on his own behalf and on the behalf of his patients.

The panel held that McCormack's challenge to § 18-606 was not moot because her claims fell under three exceptions to the mootness doctrine: (a) " voluntary cessation," (b) " collateral legal consequences," and (c) " capable of repetition, yet evading review." The panel further held that McCormack had standing based on the lingering risk of prosecution under § 18-606.

The panel held that Dr. Hearn had standing based on his intention to provide medical abortions through the second trimester outside a clinical or hospital setting and based on his possible prosecution under § 18-505 and § 18-608.

The panel held that Section 18-505, which prohibits abortions of fetuses of twenty or more weeks postfertilization, was facially unconstitutional because it categorically bans some abortions before viability. The panel further held that Section 18-608(2), which requires that all second-trimester abortions occur in a hospital, was facially unconstitutional because it places an undue burden on a woman's ability to obtain an abortion by requiring hospitalizations for all second-trimester abortions. Finally, the panel held that Section 18-608(1) (requiring, among other things, that abortions during the first trimester take place in a medical office that is properly staffed and that the responsible physician make satisfactory arrangements with an acute care hospital in case of complications or emergencies) in conjunction with § 18-605 was unconstitutionally vague.

Clay R. Smith (argued), Deputy Attorney General, and Steven L. Olsen, Chief of Civil Litigation, Attorney General's Office, Boise, Idaho for Defendant-Appellant.

Richard A. Hearn (argued), Racine, Olson, Nye, Budge & Bailey, Chartered, Pocatello, Idaho, for Plaintiff-Appellee.

Jack Van Valkenburgh, Boise, Idaho, for Intervenor-Plaintiff-Appellee.

Kathleen M. O'Sullivan and Katherine G. Galipeau, Perkins Coie LLP, Seattle, Washington, for Amici Curiae Legal Voice, Center for Reproductive Rights, National Advocates for Pregnant Women, and Planned Parenthood of the Great Northwest.

Lawrence J. Joseph, Washington, D.C., for Amicus Curiae Eagle Forum Education and Legal Defense Fund.

Before: Harry Pregerson and Kim McLane Wardlaw, Circuit Judges, and Donald E. Walter, Senior District Judge.[*] Opinion by Judge Pregerson.

OPINION

Page 1021

HARRY PREGERSON, Circuit Judge:

In this 42 U.S.C. § 1983 action, Stephen Herzog, the Prosecuting Attorney of Bannock County, Idaho, appeals the district court's order denying his motion for partial summary judgment and granting the joint motion for partial summary judgment in favor of appellees Jennie McCormack (" McCormack" ) and Dr. Richard Hearn (" Dr. Hearn" ).

Before the district court, Jennie McCormack claimed that Idaho Code Title 18, Chapters 5--the Pain-Capable Unborn Child Protection Act (" PUCPA" )--and 6, which regulate the performance of abortions, violate various provisions of the United States Constitution. McCormack's

Page 1022

attorney is Dr. Hearn, who is also an Idaho licensed physician who intends to provide his patients with pre-viability medical abortions. Dr. Hearn, as a third party-intervenor, also challenged the constitutionality of § § 18-505 and 18-608, which fall within Chapters 5 and 6 of Idaho Code Title 18.

We have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we affirm.

BACKGROUND

This case had its genesis in an Idaho state criminal prosecution when, on May 18, 2011, the then Prosecuting Attorney for Bannock County, Idaho, Mark Hiedeman,[1] filed a criminal complaint against Jennie McCormack. The complaint charged McCormack with violating Idaho Code § 18-606,[2] for knowingly submitting to an abortion not authorized under the statute, or purposely self-terminating a pregnancy. McCormack admitted to the police that she self-induced an abortion after ingesting a pack of five pills.[3] A physician examined the fetus and estimated its gestational age to have been between nineteen and twenty-three weeks, " but with difficult certainty."

Then on September 7, 2011, an Idaho state judge dismissed the criminal complaint without prejudice for lack of probable cause.

On September 16, 2011, McCormack filed a class action in the United States District Court for the District of Idaho against the then Prosecuting Attorney Hiedeman, " seeking a determination that section 18-606, as well as other provisions of Title 18, Chapters 5 and 6 of the Idaho Code, which also regulate abortion[s], violate various provisions of the United States Constitution."

On November 14, 2011, Chief United States District Judge for the District of Idaho, B. Lynn Winmill, granted McCormack's motion for preliminary injunctive relief and enjoined then Prosecuting Attorney Hiedeman from enforcing § 18-606 (criminalizing submitting to an abortion), as interpreted together with § 18-608(1).[4] The district court, however, held that McCormack did not have standing to challenge § 18-608(2)[5] or § 18-505.[6]

Page 1023

On August 22, 2012, Prosecuting Attorney Hiedeman determined that he would not re-file a criminal complaint against McCormack for allegedly violating § 18-606 because he felt that it was unlikely that his office would develop additional evidence. About two months later, the Prosecuting Attorney offered McCormack transactional immunity from prosecution for the alleged December 2010 abortion. McCormack declined to sign the agreement.

On February 23, 2012, McCormack's attorney, Dr. Hearn, moved to intervene " on his own behalf and on the behalf of his patients." Dr. Hearn is a licensed physician as well as an attorney in Idaho, and has stated his intent to provide medical abortions by " prescrib[ing] FDA approved medications to women in Bannock County, Idaho such as McCormack who . . . seek to medically (non-surgically) terminate their pregnancies prior to fetal viability in violation of the restrictions contained in Idaho Code Title 18, Chapters 5 and 6." Medical abortions induced by pills are distinct from surgical or therapeutic abortions which usually take place in a medical clinic or a hospital. Since 1997, Dr. Hearn has continuously registered with the Federal Drug Enforcement Agency and the Idaho State Board of Pharmacy, which allows him to legally prescribe medication in Bannock County. Dr. Hearn has not provided medical abortions in the past, does not have a medical office in which to treat patients, and has practiced as a full-time attorney since 1997.

The district court granted Dr. Hearn's motion to intervene. Dr. Hearn filed an amended complaint-in-intervention that similarly challenged the constitutionality of certain provisions of Idaho Code Title 18, Chapters 5 and 6. Pursuant to 42 U.S.C. § 1983, Dr. Hearn sought to enjoin the Prosecuting Attorney from criminally prosecuting or threatening to prosecute any woman who seeks an abortion or any health provider for violating Idaho Code Title 18, Chapters 5 and 6. Dr. Hearn also sought a declaratory judgment striking down the relevant Idaho statutes' criminal sanctions as unconstitutional facially and as applied to women seeking an abortion in Bannock County, Idaho, or any health provider who provides assistance to such women.

On September 11, 2012, we affirmed the district court's grant of a preliminary injunction that enjoined the Prosecuting Attorney from prosecuting McCormack under § § 18-606 and 18-608(1), and expanded the injunction to include § 18-608(2) because McCormack faced a " genuine threat of prosecution under th[is] subsection of the statute." McCormack v. Hiedeman, 694 F.3d 1004, 1020-21 (9th Cir. 2012) ( McCormack I ). We limited the preliminary injunction, however, to affect only McCormack (as opposed to all women affected by § 18-606), id. at 1019-20, and further held that ...


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