Jennie Linn McCORMACK, Plaintiff-Appellee, Richard Hearn, M.D., on his own behalf and on behalf of his patients, Intervenor-Plaintiff-Appellee, v. Stephen F. HERZOG, Bannock County Prosecuting Attorney, Defendant-Appellant.
No. 13-35401
United States Court of Appeals, Ninth Circuit
Argued and Submitted July 18, 2014. Filed May 29, 2015.
788 F.3d 1017
Before: HARRY PREGERSON and KIM McLANE WARDLAW, Circuit Judges, and DONALD E. WALTER, Senior District Judge.*
Jack Van Valkenburgh, Boise, ID, for Intervenor-Plaintiff-Appellee.
Kathleen M. O‘Sullivan and Katherine G. Galipeau, Perkins Coie LLP, Seattle, WA, 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.
Clay R. Smith (argued), Deputy Attorney General, and Steven L. Olsen, Chief of Civil Litigation, Attorney General‘s Office, Boise, ID, for Defendant-Appellant.
* The Honorable Donald E. Walter, Senior District Judge for the U.S. District Court for the Western District of Louisiana, sitting by designation.
OPINION
PREGERSON, Circuit Judge:
In this
Before the district court, Jennie McCormack claimed that
We have jurisdiction pursuant to
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
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
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 McCormаck 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 grantеd Dr. Hearn‘s motion to intervene. Dr. Hearn filed an amended complaint-in-intervention that similarly challenged the constitutionality of certain provisions of
On September 11, 2012, we affirmed the district court‘s grant of a preliminary injunction that enjoined the Prosecuting Attorney from prosеcuting McCormack under
On October 16, 2012, before the district court McCormack and Dr. Hearn jointly moved for partial summary judgment to declare three Idaho statutes—
On March 6, 2013, the district court granted McCormack and Dr. Hearn‘s joint motion for partial summary judgment and denied Prosecuting Attorney Herzog‘s cross-motion for partial summary judgment. On March 20, 2013, McCormack and Dr. Hearn moved to dismiss all remaining claims against Herzog and to enter a final judgment. The district court granted the motion and entered final judgment on May 2, 2013, declaring the challenged statutes unconstitutional, and enjoining Herzog from prosecuting McCormack or Dr. Hearn under the challenged statutes.
Herzog timely appeals the district court‘s final judgment.
DISCUSSION
A. This court has jurisdiction.
1. Standard of Review
“Mootness is a question of law reviewed de novo.” Siskiyou Reg‘l Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 559 (9th Cir. 2009) (quoting Barter Fair v. Jackson County, 372 F.3d 1128, 1133 (9th Cir. 2004)). “A case becomes moot whenever it loses its character as a present, live controversy. . . . The question is not whether the precise relief sought at the time [the case] was filed is still available. The question is whether there can be any effective relief.” Id. (quoting Earth Island Inst. v. United States Forest Serv., 442 F.3d 1147, 1157 (9th Cir. 2006)).
Questions of standing are also reviewed de novo, but underlying factual findings are reviеwed for clear error. Preminger v. Peake, 552 F.3d 757, 762 n. 3 (9th Cir. 2008).
2. McCormack‘s challenge to § 18-606 is not moot.
Herzog asserts that McCormack‘s challenge to
“A case might become moot if subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. The heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (internal quotation marks and citation omitted). Herzog, therefore, must demonstrate that his office will never again prosecute McCormack under
§ 18-606 , or that the court is no longer capable of “affect[ing] the rights of litigants in the case before [it].” Lewis v. Cont‘l Bank Corp., 494 U.S. 472, 477 (1990) (citing North Carolina v. Rice, 404 U.S. 244, 246 (1971)).
Herzog‘s office offered McCormack transactional immunity from prosecution for her alleged 2010 abortion, which McCormack declined to accept.8 The district court questioned the validity of the offer of transactional immunity because the timing of the offer suggests an attempt to “moot McCormack‘s claims and thereby avoid this litigation—and its challenge to the constitutionality of sections 18-606 and—608.” The district court further determined that other factors also suggested a live controversy:
(2) McCormack continues to assert that the provisions are unconstitutional.
(3) Prosecuting Attorney Herzog continues tо assert that the provisions are not unconstitutional.
Moreover, the district court determined that “[t]here is a significant public interest in settling the legality of these provisions, and the existence of this interest ‘militates against a mootness conclusion.‘” (citing Olagues v. Russoniello, 770 F.2d 791, 794-95 (9th Cir. 1985)).
McCormack argues that her claims are not moot because they fall under three exceptions to the mootness doctrine: (a) “voluntary cessation,” (b) “collateral legal consequences,” and (c) “capable of repetition, yet evading review.”
(a) McCormack is correct that this case falls within the “voluntary cessation” exception. Herzog acknowledges that under the “voluntary cessation” exception, it is well-settled that “a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 190. Yet Herzog argues that the court should presume that the government is acting in good faith, that the Bannock County Prosecuting Attorney office‘s decision against re-filing criminal charges was made in “the interests of justice,” and that the office‘s sparse history of bringing criminal charges under
Furthermore, while a statutory change “is usually enough to render a case moot,” an executive action that is not governed by any clear or codified procedures cannot moot a claim. Bell v. City of Boise, 709 F.3d 890, 898-900 (9th Cir. 2013) (quoting Chem. Prod. And Distrib. Ass‘n v. Helliker, 463 F.3d 871, 878 (9th Cir. 2006)). “Even assuming Defendants have no intention to alter or abandon the [offer of transactional immunity], the ease with which the [Prosecuting Attorney] could do so counsels against a finding of mootness.” Id. at 900. The discretionary decision to not re-file criminal charges against McCormack is neither “entrenched” nor “permanent.” Id.
In addition to the suspicious timing of the offer of transactional immunity, the district court noted that Herzog has “never repudiated thе statute as unconstitutional, and he did not cease McCormack‘s prosecution because he believed the prosecution was unlawful.” Instead, Herzog‘s office first determined that it had insufficient evidence to re-file criminal charges against McCormack. Then, Herzog‘s office offered McCormack transactional immunity from prosecution after our court affirmed the district court‘s decision that the Idaho statutes imposed an undue burden on a woman‘s ability to terminate her pregnancy. The offer of immunity does not by itself make it “absolutely clear” that the prosecution of McCormack would never recur. Friends of the Earth, 528 U.S. at 170; see also Olagues, 770 F.2d at 795 (finding a continuing case or controversy where the government “did not voluntarily cease the challenged activity because [it] felt that the investigation
(b) The “collateral legal consequences” exception also applies. “[A]lthough the primary injury may have passed“—Herzog has offered transactional immunity to McCormack—there still exists “‘a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.‘” E.E.O.C. v. Fed. Exp. Corp., 558 F.3d 842, 847 (9th Cir. 2009) (quoting In re Burrell, 415 F.3d 994, 999 (9th Cir. 2005)). Herzog continues to maintain the constitutionality of
(c) Finally, as the district court determined, McCormack would also be eligible for the “capable of repetition, yet evading review” exception to the mootness doctrine. Like any other woman challenging a potentially applicable abortion law, McCormack may become pregnant again, and her term of pregnancy is of limited duration. Herzog counters that McCormack lacks standing to challenge
Thus, the district court correctly held that McCormack‘s claim is not moot.
3. McCormack has standing based on a lingering risk of prosecution under § 18-606 .
Prosecuting Attorney Herzog asserts that McCormack lacks standing to challenge
Article III standing requires that McCormack establish (1) that she personally has suffered an “actual or imminent, not conjectural or hypothetical” injury as a result of the allegedly illegal conduct; (2) a causal link between her injury and the challenged action; and (3) that the injury must likely be “redressed by a favorable decision” of a federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks and citations omitted). “A plaintiff who challenges a statute must demonstrate a realistiс danger of sustaining a direct injury as a result of the statute‘s operation or enforcement.” Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. 289, 298 (1979) (citing O‘Shea v. Littleton, 414 U.S. 488, 494 (1974)).
In McCormack I, we held that McCormack does not have standing to challenge PUCPA “based on a possible future pregnancy” because “in McCormack‘s case there are too many ‘possibilities that may not take place and all may not combine.‘” 694 F.3d at 1025 (quoting Roe v. Wade, 410 U.S. 113, 128 (1973)). And McCormack conceded that Roe and other related cases have held that the possibility of future pregnancy “may be too speculative and conjectural for standing.”9
Nevertheless, McCormack continues to have standing based on the ongoing risk of prosecution for the termination of her past pregnancy. The district court properly noted that “[a]t the outset of this litigation, McCormack had standing to сhallenge the constitutionality of section 18-606 in conjunction with both section 18-608(1) and section 18-608(2) . . . because she faced prosecution and continued to be threatened with prosecution.” And McCormack presently has standing to challenge
Lastly, the risk of continued enforcement of
B. Dr. Hearn has standing to challenge §§ 18-505 and 18-608 .
The district court properly found that Dr. Hearn, as an Idaho licensed physician intеnding to provide pre-viability medical abortions, has standing to challenge
Herzog concedes that we have held that a physician possesses standing on his own behalf and on that of his patients to challenge the validity of another Idaho abortion statute. Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 917 (9th Cir. 2004) (“[P]hysicians and clinics performing abortions are routinely recognized as having standing to bring broad facial challenges to abortion statutes.“). The Supreme Court has аlso repeatedly held that a physician may “assert the rights of women patients as against governmental interference” in the abortion context. Singleton, 428 U.S. at 118 (recognizing that “there seems little loss in terms of effective advocacy from allowing [an assertion of a woman‘s right to an abortion] by a physician“); see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 845 (1992) (allowing abortion providers to challenge a state statute on behalf of third-party women who seek abortion services); Griswold v. Connecticut, 381 U.S. 479, 481 (1965) (holding that physicians have standing to assert the constitutional rights of patients to whom they prescribed contraceptive devices).
Prosecuting Attorney Herzog attempts to distinguish Dr. Hearn from other physicians who have been recognized as having standing. Herzog asserts that Dr. Hearn сannot challenge the validity of
First, Dr. Hearn has stated his clear intention to “prescribe FDA approved medications to women in Bannock County, Idaho such as Plaintiff McCormack who . . . seek to medically terminate their pregnancies in violation of the restrictions contained in Idaho Code Title 18, Chapters 5 and 6 . . . prior to fetal viability.” Furthermore, Dr. Hearn intends to perform medical abortions outside a clinical or hospital setting through the second trimester. We have recognized that a physician‘s statement of intent is sufficient to establish standing, when the physician is at risk of criminal prosecution under the relevant statutes. Wasden, 376 F.3d at 916-17 (“by stat[ing] his clear intent[] to continue to perform abortions . . . [a physician] has alleged a sufficiently concrete and imminent injury—possible prosecution and imprisonment—to challenge the provisions that ban abortion providers from [providing medical abortions to women prior to fetal viability.]“). Further, Dr. Hearn need not even claim a “specific intent to violate the statute.” Id. at 917 (noting that a plaintiff need only “reasonable fear a statute would be enforced against it if it engaged in certain conduct“) (citation omitted).
Second, Dr. Hearn‘s intent to provide FDA-approved medication to women to terminate their pregnancies prior to fetal viability does not need to be supported by a demonstration of the “medical appropriateness” of his ability to provide medical abortions. Whether Dr. Hearn can provide medical abortions in “an appropriate clinical setting” is irrelevant to whether he, as an Idaho licensed physician, can effectively represent the constitutional right to terminate a pregnancy before viability. The Supreme Court has looked to thе professional relationship between a physician and a patient, Griswold, 381 U.S. at 481, the economic harm on abortion providers, Singleton, 428 U.S. at 112-13, and a physician‘s “direct stake” in the abortion process, Diamond v. Charles, 476 U.S. 54, 67 (1986), when determining standing. But an inquiry into the “medical appropriateness” of an abortion provider‘s practice is not only unprecedented, but is also too ambiguous, and thus unwarranted.
Since 1997, Dr. Hearn has continuously been registered with the Federal Drug Enforcement Agency and the Idaho State Board of Pharmacy. And his ability to legally prescribe FDA-approved abortion medication in Bannock County is sufficient to demonstrate an “actual and imminent” injury—the risk of criminal prosecution for prescribing abortion pills prior to viability.
Accordingly, the district court properly determined that Dr. Hearn has standing to assert his patients’ rights in cases challenging abortion restrictions, and we will consider Dr. Hearn‘s claims.
C. The statutes pose an undue burden on a woman‘s ability to obtain an abortion, and the criminal sanctions for abortion providers are unconstitutionally vague.
A woman has a Fourteenth Amendment right to terminate a pre-viability pregnancy, “and to obtain it without undue interference from the State.” Casey, 505 U.S. at 846. However, this right is not absolute, and the state may express its interest in potential life by regulating abortions, so long as the regulations do not pose an “undue burden”
1. Standard of Review
We review de novo a district court‘s grant of summary judgment. Nunez v. City of San Diego, 114 F.3d 935, 940 (9th Cir. 1997). “[A] facial challenge to an abortion statute will succeed where, in a large fraction of the cases in which the statute is relevant, it will operate as a substantial obstacle to a woman‘s choice to undergo an abortion.” Wasden, 376 F.3d at 921 (internal quotation marks, brackets, and citation omitted). And the “large fraction” is computed by focusing on “those upon whom a challenged law would have some actual effect, rather than all women . . . seeking an abortion.” Id. There is also a heightened need for definiteness “when the ordinance imposes criminal penalties on individual behavior or implicates constitutionally protected rights.” Nunez, 114 F.3d at 940.
2. Section 18-505 is facially unconstitutional because it categorically bans some abortions before viability.
Section 18-505 prohibits abortions of fetuses of twenty or more weeks post-fertilization. The twenty-week ban applies regardless of whether the fetus has attained viability.
The Supreme Court reaffirmed in Casey that an undue burden exists if the purpose or effect of a provision of law places a substantial obstacle in the path of a woman seeking an abortion before the fetus obtains viability. Casey, 505 U.S. at 846. In Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 64 (1976), the Court further explained that “it is not the proper function of the legislature or the courts to place viability, which essentially is a medical concept, at a specific point in the gestation рeriod.” Because
Prosecuting Attorney Herzog concedes that “[n]o dispute exists that medical induction abortions can occur between the twentieth week of pregnancy and fetal viability.” Yet Herzog attempts to reframe the issue as whether the statute imposes an undue burden on Dr. Hearn‘s proposed plan to provide medical abortions in the patient‘s home after the twentieth wеek of pregnancy. Although Dr. Hearn‘s proposed plan would be detrimentally affected by the enforcement of
Thus, the district court did not err in finding
3. Section 18-608(2) is facially unconstitutional because it requires hospitalizations for all second-trimester abortions.
Section 18-608(2) requires that all second-trimester abortions occur in a hos-
The Supreme Court has twice invаlidated requirements that physicians perform all second-trimester abortions in hospitals. See Planned Parenthood Ass‘n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476 (1983); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983) (overturned on other grounds). “[S]uch a requirement unreasonably infringes upon a woman‘s constitutional right to obtain an abortion.” Ashcroft, 462 U.S. at 482.
Prosecuting Attorney Herzog attempts to distinguish the present case from this controlling Supreme Court precedent by arguing that both the absolute and percentage terms of second trimester abortions in Idaho are “quite small.” Between 2007 and 2011, about 1.2 percent of abortions in Idaho were performed during or after the fourteenth week of pregnancy and only about 21.5 percent of those abortions were non-surgical. But Herzog draws the court‘s attention to irrelevant figures. The percentage of non-surgical second trimester abortions is certainly small, but for “a large fraction of the cases in which [the statute] is relevant,” required hospitalization will operate as a substantial obstacle. Casey, 505 U.S. at 895.
Herzog also asserts that Dr. Hearn is not “competent professionally” to provide medical abortions outside of a hospital setting. However, we think that an inquiry into the “medical appropriateness” of Dr. Hearn‘s proposed prescriptions of abortion pills is not properly part of our analysis, especially given the vagueness of that phrase.
Therefore, the district court did not err in finding
4. Section 18-608(1) in conjunction with § 18-605 is unconstitutionally vague.
Section 18-608 outlines where certain abortions are permitted. Specifically,
properly staffed and equipped for the performance of such procedures and respecting which the responsible physician or physicians have made satisfactory arrangements with one or more acute care hospitals within reasonable proximity thereof providing for the prompt availability of hospital care as may be required due to complications or emergencies that might arise.
Herzog contests the district court‘s determination that
In Gonzales v. Carhart, 550 U.S. 124 (2007), the Supreme Court considered whether the Partial-Birth Abortion Ban Act of 2003,
Unlike the terms in the Act at issue in Gonzales, the terms “properly” and “satisfactory,” as used in
We have found a statute unconstitutionally vague that required that patients “be treated with consideration, respect, and full recognition of the patient‘s dignity and individuality” because “understandings of what ‘consideration,’ ‘respect,’ ‘dignity,’ and ‘individuality’ mean are widely variable, . . . [making the statute too] vague and subjective for providers to know how they should behave in order to comply, as well as too vague to limit arbitrary enforcement.” Id. at 554-55. Here, the terms “properly” and “satisfactory” are similarly subjective and open to multiple interpretations.
The district court noted that the dictionary definitions of the terms also are unhelpful in curing the statute‘s vagueness. “Properly” means “suitably, fitly, rightly, correctly.” WEBSTER‘S THIRD INT‘L DICTIONARY 1818 (3d ed.1976). “Satisfactory” means “sufficient to meet a condition or оbligation.” Id. at 2017. Instead of providing clarity, the definitions raise the same questions as the terms themselves: proper, satisfactory, fit, right, or sufficient according to whom or what standard?
Unlike the specific “anatomical landmarks” in the statute at issue in Gonzales,
Moreover, the scienter requirement in
Herzog also attempts to import the “reasonable physician” standard from Idaho‘s medical practice liability statute (which is not being challenged in this casе) to argue that a standard of objective reasonableness for physicians generally applies to all instances of civil liability—including
Lastly, Herzog argues that if our court finds
Assuming the terms “properly” and “satisfactory” are severable, striking these words from the statute would not remedy the constitutional infirmities of the statute. Removing the ambiguous terms would result in the following language:
Abortions permitted by this subsection shall only be lawful if and when performed in a hospital or in a physician‘s regular office or a clinic which office or clinic is _______ staffed and equipped for the performance of such procedures and respecting which thе responsible physician or physicians have made _______ arrangements with one or more acute care hospitals within reasonable proximity thereof providing for the prompt availability of hospital care as may be required due to complications or emergencies that might arise.
The appropriate amount of staff and equipment for an abortion remains unclear, as there may be differing opinions about what is sufficient. It also is unclear what types of arrangements must be made with acute care hospitals to comply with the statute. “Given the potential for harassment of abortion providers, it is particularly important that enforcement of any unconstitu-
CONCLUSION
For the foregoing reasons, we affirm the district court‘s judgment. McCormack‘s challenge to
AFFIRMED.