Jennie McCormack v. Stephen Herzog

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JENNIE LINN MCCORMACK, No. 13-35401
Plaintiff-Appellee,
D.C. No.
RICHARD HEARN, M.D., on his own 4:11-cv-00433-
behalf and on behalf of his patients, BLW
Intervenor-Plaintiff-Appellee,
v. OPINION
STEPHEN F. HERZOG, Bannock
County Prosecuting Attorney,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
July 18, 2014—Pasadena, California
Filed May 29, 2015
Before: Harry Pregerson and Kim McLane Wardlaw,
Circuit Judges, and Donald E. Walter, Senior District
Judge.*
Opinion by Judge Pregerson
*
The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.
2 MCCORMACK V. HERZOG
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.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MCCORMACK V. HERZOG 3
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 care of complications or emergencies) in
conjunction with § 18-605 was unconstitutionally vague.
COUNSEL
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.
4 MCCORMACK V. HERZOG
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.
OPINION
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 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.
MCCORMACK V. HERZOG 5
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.
1
Stephen Herzog (“Herzog”) succeeded Mark Hiedeman as Prosecuting
Attorney on January 14, 2013, and was automatically substituted as the
defendant pursuant to Fed. R. Civ. P. 25(d).
2
Section 18-606 provides that a woman who submits to an abortion in
a manner not authorized by statute, or acts as an accomplice to such an
abortion, will be guilty of a felony, fined, and/or imprisoned for not less
than one year, and not more than five.
3
McCormack knew that abortions are not available in southeast Idaho,
where she lived. McCormack was aware that abortions are available in
Salt Lake City, Utah, and cost between $400 and $2,000, depending on the
stage of the pregnancy. McCormack learned that medications could be
used to perform abortions and that the medications were significantly less
expensive than surgical abortions. McCormack’s sister allegedly found
unspecified abortion pills online, paid $200 for them, and had them
shipped to McCormack in Idaho.
6 MCCORMACK V. HERZOG
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
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
4
Section 18-608(1) requires a physician to perform all first trimester
abortions in a “properly staffed and equipped” hospital, medical office, or
clinic. The physician must also make “satisfactory arrangements with one
or more acute care hospitals within reasonable proximity,” in case of
complications or emergencies related to the abortion.
5
Section 18-608(2) requires all second trimester abortions to take place
in a hospital.
6
Section 18-505 categorically bans abortions of fetuses of twenty or
more weeks postfertilization except in particular circumstances.
MCCORMACK V. HERZOG 7
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
8 MCCORMACK V. HERZOG
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 McCormack lacked standing to seek
pre-enforcement relief against the enforcement of PUCPA on
the basis of future pregnancies, id. at 1022–25.
On October 16, 2012, before the district court
McCormack and Dr. Hearn jointly moved for partial
summary judgment to declare three Idaho statutes—§ 18-606,
in conjunction with § 18-608(1) or (2); § 18-605,7 in
conjunction with § 18-608(1) or (2); and § 18-505, in
conjunction with § 18-507 or § 18-508—unconstitutional, and
to permanently enjoin the Prosecuting Attorney from
enforcing the statutes.
On March 6, 2013, the district court granted McCormack
and Dr. Hearn’s joint motion for partial summary judgment
7
Section 18-605 establishes civil and criminal penalties for persons who
perform abortions other than as permitted by the remainder of Title 18,
Chapter 6 of the Idaho Code. In particular, § 18-605(3) states that the
licensed or certified health care provider must “knowingly” violate the
statute to be guilty of a felony.
MCCORMACK V. HERZOG 9
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 reviewed for clear error.
Preminger v. Peake, 552 F.3d 757, 762 n.3 (9th Cir. 2008).
10 MCCORMACK V. HERZOG
2. McCormack’s challenge to § 18-606 is not moot.
Herzog asserts that McCormack’s challenge to § 18-606
is moot because the Prosecuting Attorney granted
McCormack transactional immunity for the alleged 2010
abortion.
“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 -
8
Like the district court, we assume, but do not decide, that the
Prosecuting Attorney’s offer to not prosecute McCormack is a
transactional immunity agreement.
MCCORMACK V. HERZOG 11
608.” The district court further determined that other factors
also suggested a live controversy:
(1) The specific relief McCormack seeks—
declaratory relief that § 18-606,
interpreted with §§ 18-608(1) and 18-
608(2), is facially unconstitutional—is
still available.
(2) McCormack continues to assert that the
provisions are unconstitutional.
(3) Prosecuting Attorney Herzog continues to
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,
12 MCCORMACK V. HERZOG
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 § 18-606 demonstrates a lack of
“biased calculus.” A presumption of good faith, however,
cannot overcome a court’s wariness of applying mootness
under “protestations of repentance and reform, especially
when abandonment seems timed to anticipate suit, and there
is probability of resumption.” United States v. W.T. Grant
Co., 345 U.S. 629, 632 n.5 (1953) (quoting United States v.
Oregon State Medical Society, 343 U.S. 326, 333 (1952)).
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 the 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 V. HERZOG 13
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 was improper[, but, r]ather, [the
government] terminated the investigation solely because it
failed to produce evidence supporting any further
investigative activities.”).
(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. 2008) (quoting In re Burrell,
415 F.3d 994, 999 (9th Cir. 2005)). Herzog continues to
maintain the constitutionality of § 18-606, and declaratory
relief remains available and unaffected.
(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 § 18-606 on the
basis of future pregnancies. Yet Herzog is conflating the
14 MCCORMACK V. HERZOG
mootness of McCormack’s claim with her standing to bring
the claim. As elaborated below, McCormack may not have
standing to challenge the provision on the basis of future
pregnancies, but that does not moot her current action. See
Friends of the Earth, 528 U.S. at 191 (explaining that a post-
complaint resolution will not moot an action, “despite the fact
that [the plaintiff] would have lacked initial standing had she
filed the complaint after the [resolution]”).
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 § 18-606 on the basis of future
pregnancies.
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 realistic 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)).
MCCORMACK V. HERZOG 15
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
challenge 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 §§ 18-606 and 18-608 because, as
discussed in section A.2 above, the Prosecuting Attorney’s
offer of immunity does not guarantee that the prosecution of
McCormack would never recur. Because McCormack
9
Indeed, “there are circumstances in which the prospect that a [party]
will engage in (or resume) [its] conduct may be too speculative to support
standing, but not too speculative to overcome mootness.” Friends of the
Earth, 528 U.S. at 190. Therefore, even if McCormack may not have
standing to challenge § 18-606 on the basis of future pregnancies, that
does not moot her initial claim that she asserted when she properly had
standing. Id. (“Standing doctrine functions to ensure, among other things,
that the scarce resources of the federal courts are devoted to disputes in
which the parties have a concrete stake. In contrast, by the time mootness
is an issue, the case has been brought and litigated, often . . . for years. To
abandon the case at an advanced stage may prove more wasteful than
frugal.”).
16 MCCORMACK V. HERZOG
currently has standing based on a lingering risk of
prosecution under § 18-606, her injury is not conjectural or
hypothetical.
Lastly, the risk of continued enforcement of § 18-606
against McCormack is still redressable by declaratory relief.
Accordingly, McCormack has standing to challenge the
enforcement of § 18-606 against her for her past alleged
abortion.
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 intending to provide pre-viability
medical abortions, has standing to challenge §§ 18-505 and
18-608. We review the district court’s standing decision de
novo. Gospel Missions of America v. City of Los Angeles,
328 F.3d 548, 553 (9th Cir. 2003). To determine whether a
physician has third-party standing to assert the rights of
patients in the abortion context, the panel must determine:
(1) whether the physician alleges “injury in fact” to himself
or herself; and (2) whether the physician is a proper
proponent of the legal rights on which he or she bases the
suit. Singleton v. Wulff, 428 U.S. 106, 112 (1976).
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 also repeatedly held that
MCCORMACK V. HERZOG 17
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 cannot
challenge the validity of §§ 18-505 and 18-608 because he
has not established that he can provide abortions in a
“medically appropriate manner.” Herzog claims that Dr.
Hearn seeks to provide access to abortifacients, i.e.,
medication to induce abortions, under a regime that has
negative health and potentially life-threatening consequences
and a finding of standing cannot be “squarely adverse to the
interests of the patient.”
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
18 MCCORMACK V. HERZOG
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 the 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
MCCORMACK V. HERZOG 19
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” on a woman’s
ability to seek an abortion before the fetus attains viability.
Id. at 874. Although the state may ensure that the woman’s
choice is informed, and protect the health and safety of a
woman seeking an abortion, the state may not prohibit a
woman from making the “ultimate decision” to undergo an
abortion. Id. at 878–79.
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
20 MCCORMACK V. HERZOG
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 postfertilization. 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 period.” Because
§ 18-505 places an arbitrary time limit on when women can
obtain abortions, the statute is unconstitutional. We also
recently held unconstitutional an Arizona law banning
abortions after the twenty week gestational age because the
law operated as a ban on a woman’s constitutional right a to
pre-viability abortion. Isaacson v. Horne, 716 F.3d 1213,
1225–1227 (9th Cir. 2013).
MCCORMACK V. HERZOG 21
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
week of pregnancy. Although Dr. Hearn’s proposed plan
would be detrimentally affected by the enforcement of § 18-
505, the broader effect of the statute is a categorical ban on
all abortions between twenty weeks gestational age and
viability. This is directly contrary to the Court’s central
holding in Casey that a woman has the right to “choose to
have an abortion before viability and to obtain it without
undue interference from the State.” Casey, 505 U.S. at 846
(emphasis added).
Thus, the district court did not err in finding § 18-505
facially unconstitutional.
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 hospital. If the licensed medical provider
fails to abide by § 18-608(2), he or she will be subject to civil
and criminal penalties, as outlined in §18-605.
The Supreme Court has twice invalidated 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
22 MCCORMACK V. HERZOG
unreasonably infringes upon a woman’s constitutional right
to obtain an abortion.” Planned Parenthood Ass’n of Kansas
City, Mo., Inc., 462 U.S. at 482 (internal quotation marks
omitted).
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 § 18-
608(2) facially unconstitutional.
4. Section 18-608(1) in conjunction with § 18-605 is
unconstitutionally vague.
Section 18-608 outlines where certain abortions are
permitted. Specifically, §18-608(1) requires abortions during
MCCORMACK V. HERZOG 23
the first trimester to take place in a hospital, physician’s
office, or clinic that is:
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.
Idaho Code Ann. § 18-608(1) (emphasis added).
Section 18-605 establishes civil and criminal penalties for
persons who perform abortions other than as permitted by the
remainder of Title 18, Chapter 6 of the Idaho Code. In
particular, § 18-605(3) states that the licensed or certified
health care provider must “knowingly” violate the statute to
be guilty of a felony.
Herzog contests the district court’s determination that
§ 18-608(1) is unconstitutionally vague, arguing that:
(1) whether a medical office is “properly staffed” and
whether “satisfactory arrangements” with a hospital have
been made “connote objectively determinable facts,” and
(2) the § 18-605 enforcement provisions require the alleged
violation to be performed “knowingly.” We are not
persuaded.
“To avoid unconstitutional vagueness, an ordinance must
(1) define the offense with sufficient definiteness that
24 MCCORMACK V. HERZOG
ordinary people can understand what conduct is prohibited;
and (2) establish standards to permit police to enforce the law
in a non-arbitrary, non-discriminatory manner.” Nunez,
114 F.3d at 940. If a statute subjects violators to criminal
penalties, the need for clear definitions “is even more
exacting.” Forbes v. Napolitano, 236 F.3d 1009, 1011 (9th
Cir. 2000). The Supreme Court has held that “a criminal
statute that fails to give a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden by the
statute or is so indefinite that it encourages arbitrary and
erratic arrests and convictions is void for vagueness.”
Colautti v. Franklin, 439 U.S. 379, 390 (1979) (internal
quotation marks and citations omitted). “[W]here the
uncertainty induced by the statute threatens to inhibit the
exercise of constitutionally protected rights[,]” the law is
even more likely to be found unconstitutionally vague. Id. at
391.
In Gonzales v. Carhart, 550 U.S. 124, 147–48 (2007), the
Supreme Court considered whether the Partial-Birth Abortion
Ban Act of 2003, 18 U.S.C. § 1531 (2000 ed., Supp. IV), was
unconstitutionally vague. The Act defines the unlawful
abortion in explicit terms and includes very specific
“anatomical landmarks” to put abortion providers on notice
as to what type of abortions are prohibited. Gonzales,
550 U.S. at 147–48. The Court found that the Act sets forth
“relatively clear guidelines as to prohibited conduct and
provides objective criteria to evaluate whether a doctor has
performed a prohibited procedure[,] . . . [u]nlike the statutory
language in Stenberg [v. Carhart, 530 U.S. 914 (2000)] that
prohibited the delivery of a substantial portion of the fetus.”
Id. at 149 (internal quotation marks omitted).
MCCORMACK V. HERZOG 25
Unlike the terms in the Act at issue in Gonzales, the terms
“properly” and “satisfactory,” as used in § 18-608(1), lack
precise definition, and “subject[] physicians to sanctions
based not on their own objective behavior, but on the
subjective viewpoints of others.” Tucson Woman’s Clinic v.
Eden, 379 F.3d 531, 555 (9th Cir. 2004) (internal quotation
marks omitted). Neither term is defined in the statute, nor are
they terms of art with specific definitions in the medical
context.
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
(internal quotation marks omitted). 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
obligation.” 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, § 18-608(1) fails to provide a specific
26 MCCORMACK V. HERZOG
standard to measure or determine what is “proper” or
“satisfactory.” The district court correctly recognized the
“trap” of these imprecise terms: they “could well impose
criminal liability on activity that offends some people’s sense
of what is ‘properly staffed and equipped’ or what
arrangements are ‘satisfactory,’ but may appear to others as
more than adequate.”
Moreover, the scienter requirement in § 18-605(3) (a
medical provider must “knowingly violate[] the provision[]”
to be guilty of a felony), does not make the widely variable
definitions of “properly” and “satisfactory” any less vague.
Because the enforcement of the statute relies on “wholly
subjective judgments without statutory definitions,” a
physician could argue that he believed he complied with § 18-
608(1). United States v. Williams, 553 U.S. 285, 306 (2008).
Additionally, “this lack of clarity may operate to inhibit [a
physician’s provision of legal abortion services] because
individuals will not know whether the ordinance allows their
conduct, and may choose not to exercise their rights for fear
of being criminally punished.” Hunt v. City of Los Angeles,
638 F.3d 703, 713 (9th Cir. 2011).
Herzog also attempts to import the “reasonable physician”
standard from Idaho’s medical practice liability statute
(which is not being challenged in this case) to argue that a
standard of objective reasonableness for physicians generally
applies to all instances of civil liability—including § 18-608.
However, violators of § 18-608 are not just subject to civil
penalties, but also to criminal prosecution under § 18-605.
And whereas the legislature definitively outlined a reasonable
physician standard in the medical malpractice statute, it failed
to do so in the abortion statute. Without clear language that
gives physicians adequate notice of how to comply with the
MCCORMACK V. HERZOG 27
statute, § 18-608(1), as interpreted with § 18-605, is
unconstitutionally vague. See Colautti, 439 U.S. at 391
(finding a statute void for vagueness “where the uncertainty
induced by the statute threatens to inhibit the exercise of
constitutionally protected rights,” even where the law could
have some constitutional applications).
Lastly, Herzog argues that if our court finds § 18-608(1)
impermissibly vague, we should sever the unconstitutional
words from the statute pursuant to § 18-616, the law’s
severability clause. The Idaho Supreme Court has held that
“when the unconstitutional portion of a statute is not integral
or indispensable, it will recognize and give effect to a
severability clause.” Simpson v. Cenarrusa, 944 P.2d 1372,
1377 (Idaho 1997).
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 the
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.
28 MCCORMACK V. HERZOG
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 unconstitutionally vague provisions of the
scheme be enjoined.” Tucson Woman’s Clinic, 379 F.3d at
554. Thus, the lack of definitive standards for performing
legal first trimester abortions causes § 18-608(1) to remain
unconstitutionally vague.
CONCLUSION
For the foregoing reasons, we affirm the district court’s
judgment. McCormack’s challenge to § 18-606 is not moot
because her claims fall under three exceptions to the
mootness doctrine: (a) “voluntary cessation,” (b) “collateral
legal consequences,” and (c) “capable of repetition, yet
evading review.” McCormack has standing based on the
lingering risk of prosecution under § 18-606. Dr. Hearn has
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. Section 18-505 is facially unconstitutional
because it categorically bans some abortions before viability.
Section 18-608(2) is 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. Section 18-608(1) in conjunction with § 18-605 is
unconstitutionally vague.
AFFIRMED.