Jennie McCormack v. Stephen Herzog
788 F.3d 1017
9th Cir.2015Background
- Jennie McCormack was charged in Idaho under § 18-606 for allegedly self-inducing a 2010 abortion; the state criminal complaint was later dismissed for lack of probable cause. McCormack thereafter filed a federal suit challenging Idaho abortion statutes in Title 18, Chapters 5–6.
- Dr. Richard Hearn, an Idaho-licensed physician and attorney, intervened seeking to provide pre-viability medical (pill) abortions and to challenge §§ 18-505, 18-605, 18-606, and 18-608 as unconstitutional; he asserted risk of prosecution for prescribing abortifacients outside hospital/clinic settings.
- The district court preliminarily enjoined prosecution under §§ 18-606 and 18-608 subsections and later granted McCormack and Hearn partial summary judgment, declaring several statutory provisions unconstitutional and enjoining enforcement against them; Herzog (Bannock County Prosecuting Attorney) appealed.
- Key contested statutory provisions: § 18-505 (categorical ban on abortions at ≥20 weeks postfertilization), § 18-608(1) (first-trimester abortions only in “properly staffed and equipped” office/clinic or hospital with “satisfactory arrangements”), § 18-608(2) (all second-trimester abortions must occur in hospitals), and § 18-605 (criminal penalties tied to violations).
- District court and Ninth Circuit analysis addressed mootness (transactional immunity offered but declined), standing for McCormack as to past prosecution risk, third-party and provider standing for Dr. Hearn, vagueness of statutory terms, and whether the statutes impose an undue burden on pre-viability abortion access.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of McCormack's challenge to § 18-606 | § 18-606 not moot despite offered immunity because offer timed to avoid litigation and immunity not permanent | Offer of transactional immunity moots prosecution risk for the charged conduct | Not moot — voluntary cessation, collateral consequences, and capable-of-repetition exceptions apply |
| Standing to challenge § 18-606 based on past alleged abortion | McCormack retains standing due to lingering real risk of prosecution for the past act | Herzog argues lack of standing for future-pregnancy challenges and that immunity eliminates injury | McCormack has Article III standing based on ongoing risk of prosecution for the past alleged abortion |
| Provider/third-party standing for Dr. Hearn to challenge §§ 18-505, 18-608 | Hearn, by intent to prescribe FDA-approved abortion medication and facing criminal risk, may assert his and patients’ rights | Herzog contends Hearn lacks competence/medical appropriateness to represent patients and therefore lacks standing | Hearn has standing to bring facial and as-applied challenges as a physician at risk of prosecution |
| Constitutionality of §§ 18-505, 18-608(1), 18-608(2) and § 18-605 vagueness | Statutes impose undue burdens and vagueness: § 18-505 bans some pre-viability abortions; § 18-608(2) forces hospital-only second-trimester abortions; § 18-608(1) terms are vague and, with § 18-605 penalties, chill lawful care | Herzog defends statutes as permissible regulations and contends medical appropriateness and low incidence of second-trimester medical abortions justify statutes; scienter in § 18-605 cures vagueness | Court: § 18-505 facially unconstitutional (categorical pre-viability ban); § 18-608(2) facially unconstitutional (undue burden); § 18-608(1) with § 18-605 is unconstitutionally vague |
Key Cases Cited
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), 528 U.S. 167 (mootness and voluntary cessation principles)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (Article III standing requirements)
- Planned Parenthood v. Casey, 505 U.S. 833 (undue-burden standard for abortion restrictions)
- Roe v. Wade, 410 U.S. 113 (constitutional right to abortion context for standing/mootness discussion)
- Gonzales v. Carhart, 550 U.S. 124 (vagueness and statutory specificity in abortion regulation context)
- Planned Parenthood Ass’n of Kansas City v. Ashcroft, 462 U.S. 476 (invalidating hospital-only requirements for second-trimester abortions)
- City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (same subject-matter precedent on abortion regulation)
- McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012) (earlier panel decision on preliminary injunction and standing limits)
- Isaacson v. Horne, 716 F.3d 1213 (9th Cir.) (striking similar twenty-week gestational ban as pre-viability barrier)
- Colautti v. Franklin, 439 U.S. 379 (vagueness doctrine where statute chills protected activity)
- Singleton v. Wulff, 428 U.S. 106 (physician third-party standing to assert patients’ abortion rights)
- Wasden (Planned Parenthood of Idaho, Inc. v. Wasden), 376 F.3d 908 (physician standing in Idaho abortion statute challenges)
- Tucson Woman’s Clinic v. Eden, 379 F.3d 531 (vagueness where subjective statutory terms chill providers)
- Nunez v. City of San Diego, 114 F.3d 935 (heightened definiteness required where criminal penalties affect protected conduct)
- United States v. W.T. Grant Co., 345 U.S. 629 (caution against mootness via timed abandonment)
- United States v. Williams, 553 U.S. 285 (scienter and vagueness discussion)