Jennie McCormack v. Mark Hiedeman

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JENNIE LINN MCCORMACK, 
Plaintiff-Appellee,
No. 11-36010
v.
 D.C. No.
MARK L. HIEDEMAN, Bannock 4:11-cv-00433-BLW
County Prosecuting Attorney,
Defendant-Appellant.

JENNIE LINN MCCORMACK, 
Plaintiff-Appellant, No. 11-36015
v.
 D.C. No.
4:11-cv-00433-BLW
MARK L. HIEDEMAN, Bannock
County Prosecuting Attorney, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
July 9, 2012—Portland, Oregon
Filed September 11, 2012
10913
10914 MCCORMACK v. HIEDEMAN
Before: Betty B. Fletcher and Harry Pregerson,
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.
10916 MCCORMACK v. HIEDEMAN
COUNSEL
Clay R. Smith, Deputy Attorney General, Boise, Idaho, for
the defendant-appellant and cross-appellee.
Richard A. Hearn, Racine, Olson, Nye, Budge & Bailey,
Chartered, Pocatello, Idaho, for the plaintiff-appellee and
cross-appellant.
Kathleen M. O’Sullivan, Perkins Coie, Seattle, Washington,
for amici curiae Legal Voice, Center for Reproductive Rights,
and National Advocates for Pregnant Women.
MCCORMACK v. HIEDEMAN 10917
OPINION
PREGERSON, Circuit Judge:
On May 18, 2011, Mark Hiedeman, the Bannock County,
Idaho prosecuting attorney, filed a felony criminal complaint
in the district court of the State of Idaho, in and for Bannock
County against Jennie Linn McCormack. The complaint
charged McCormack with “the public offense of Unlawful
Abortion, Idaho Code § 18-606,” which makes it a felony for
any woman to undergo an abortion in a manner not authorized
by statute. As a result, McCormack faced the possibility of up
to five years imprisonment for allegedly violating Idaho Code
§ 18-606, which specifically targets pregnant women. Idaho
Code § 18-606(2). On September 7, 2011, the Idaho state dis-
trict court dismissed the criminal complaint without prejudice.
Prosecuting attorney Hiedeman has not determined whether
he will re-file the criminal complaint.
On September 24, 2011, McCormack filed in the U.S. Dis-
trict Court for the District of Idaho a class action lawsuit
against the prosecuting attorney, Hiedeman. The suit charges,
among other things, that Idaho Code § 18-606 violates various
provisions of the United States Constitution. The district court
issued a preliminary injunction, restraining Hiedeman from
enforcing Idaho Code §§ 18-606 and 18-608(1). Hiedeman
appeals, arguing that (1) the federal district court erred in
determining that McCormack would likely succeed on the
merits; and (2) the injunction is overbroad. McCormack cross
appeals, arguing that the federal district court should have
enjoined enforcement of Idaho Code § 18-606 in conjunction
with both §§ 18-608(1) and 18-608(2). Additionally, McCor-
mack argues that she has standing to challenge the enforce-
ment of Chapter 5, the Pain-Capable Unborn Child Protection
Act (including Idaho Code §§ 18-505 – 18-507).
For the reasons set forth below, we affirm in part and
reverse in part the district court’s grant of a preliminary
injunction.
10918 MCCORMACK v. HIEDEMAN
A. Background
McCormack is a resident of Bannock County, Idaho. In
2010, McCormack was unmarried, had three children (ages 2,
11, and 18), and was unemployed. In 2010, McCormack had
no source of income other than child support payments which
were between $200 and $250 per month.
In the fall of 2010, McCormack was pregnant and sought
an abortion. She knew that abortions were not available in
southeast Idaho. In fact, there are no licensed health care pro-
viders offering abortion services in the eight southeastern
Idaho counties. McCormack knew that abortions are available
in Salt Lake City, Utah, but at costs between $400 – $2,000
depending on how far along the pregnancy is.1
But McCormack found out that abortions could be per-
formed in Idaho using medications, rather than surgery and
that the cost of such medical abortions was significantly less
than the cost of a surgical abortion like those offered in Salt
Lake City, Utah. She further learned that medications induc-
ing abortions had been approved for use in the U.S. and could
be purchased over the internet.
In McCormack’s complaint, she states that she “considered
terminating her pregnancy . . . by ingesting one or more medi-
cations she reasonably believed to have been prescribed by a
health care provider practicing outside Bannock County,
Idaho.” During the hearing before the district court on
McCormack’s motion for a preliminary injunction, McCor-
mack’s attorney reiterated that the medications were pre-
1
It is about 138 miles from Bannock County, Idaho to Salt Lake City,
Utah. This Court takes “judicial notice of a Google map and satellite
image as a ‘source[ ] whose accuracy cannot reasonably be questioned,’ ”
at least for determining the approximate distance from Idaho to Utah. See
United States v. Perea-Rey, 680 F.3d 1179, 1182 n.1 (9th Cir. 2012) (quot-
ing Fed. R. Evid. 201(b)).
MCCORMACK v. HIEDEMAN 10919
scribed by a physician. McCormack’s attorney stated that
McCormack went to “a provider over the [i]nternet.”
On May 18, 2011, Hiedeman, in his capacity as Bannock
County prosecuting attorney, filed a criminal complaint in the
district court of the State of Idaho, in and for Bannock
County, charging McCormack with the felony of “the public
offense of Unlawful Abortion, Idaho Code § 18-606.” The
criminal complaint alleged:
That the said JENNIE LINN MCCORMACK, in the
County of Bannock, State of Idaho, on the 24th day
of December, 2010, did induce or knowingly aid in
the production or performance of an abortion by
knowingly submitting to an abortion and/or solicit-
ing of another, for herself, the production of an abor-
tion; and/or who purposely terminated her own
pregnancy other than by live birth.2
A magistrate judge dismissed the criminal complaint without
prejudice on September 7, 2011. Hiedeman has not deter-
mined whether to re-file the criminal complaint.
McCormack does not want to have additional children. If
she became pregnant, she would seek an abortion again.
Because there are no providers of medical abortions in south-
east Idaho, McCormack would need to seek the assistance of
providers of abortion services outside of southeast Idaho.
B. Statutes
This case requires the interpretation of three Idaho abortion
statutes: Idaho Code § 18-606, Idaho Code § 18-608, and
2
The criminal complaint does not allege which trimester McCormack
was in when she had the alleged abortion. It also does not state the esti-
mated age of the aborted fetus. Further, it does not specify which statute
in conjunction with § 18-606 the state was prosecuting McCormack under.
10920 MCCORMACK v. HIEDEMAN
Idaho Code § 18-505. We summarize the substance of each
statute.
1. Chapter Six: Idaho Code § 18-606Idaho Code § 18-606(2) makes it a felony, except as per-
mitted by the remainder of Title 8, Chapter 6 of the Idaho
Code, for “[e]very woman who knowingly submits to an abor-
tion or solicits of another, for herself, the production of an
abortion, or who purposely terminates her own pregnancy
otherwise than by a live birth . . . .” Anyone deemed guilty
of violating § 18-606 “shall be fined not to exceed five thou-
sand dollars ($5,000) and/or imprisoned in the state prison for
not less than one (1) and not more than five (5) years.” Idaho
Code § 18-606(2).
2. Chapter Six: Idaho Code § 18-608Idaho Code § 18-608, entitled “Certain abortions permitted
— Conditions and guidelines” provides the statutory content
for the limitation on the applicability of Idaho Code § 18-606.
Under § 18-608(1), a woman may terminate her pregnancy
during the first trimester if the abortion is performed by a
physician
in a hospital or in a physician’s regular office or a
clinic which office or clinic 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 availabil-
ity of hospital care as may be required due to com-
plications or emergencies that might arise.
Under § 18-608(2), a woman may terminate her pregnancy
during the second trimester of pregnancy, but the abortion
MCCORMACK v. HIEDEMAN 10921
must be “performed in a hospital and [must be], in the judg-
ment of the attending physician, in the best medical interest
of such pregnant woman.”
3. Chapter Five, the Pain-Capable Unborn Child Pro-
tection Act: Idaho Code § 18-505 – § 18-507
Idaho Code § 18-505, or the Pain-Capable Unborn Child
Protection Act (“PUCPA”), categorically bans non-
therapeutic abortions at and after twenty weeks. “Any person
who intentionally or recklessly performs or attempts to per-
form an abortion in violation of the provisions of section 18-
505, Idaho Code, is guilty of a felony.” Idaho Code § 18-507.
The Act further states “No penalty shall be assessed against
the woman upon whom the abortion is performed or
attempted to be performed.” Id.The Act also provides civil remedies in the form of actual
damages to “[a]ny woman upon whom an abortion has been
performed in violation of the pain-capable unborn child pro-
tection act or the father of the unborn child . . . .” Idaho Code
§ 18-508(1). The Act also permits certain persons, including
a prosecuting attorney, to file an action for injunctive relief
against an abortion provider who violates § 18-505. Idaho
Code § 18-508(2).
C. Procedural History
On September 16, 2011, McCormack filed her class action
complaint against Defendant Mark L. Hiedeman, in his capac-
ity as Bannock County prosecuting attorney. As part of her
complaint, she sought declaratory relief, and preliminary and
permanent injunctive relief.
McCormack simultaneously filed a request for a temporary
restraining order under Fed. R. Civ. P. 65(b). The parties stip-
ulated to the entry of the temporary restraining order, and the
district court approved the stipulation on October 7, 2011,
10922 MCCORMACK v. HIEDEMAN
consistent with the memorandum decision entered on Septem-
ber 23, 2011. The temporary restraining order expired on
October 21, 2011. On November 14, 2011, the district court
issued a preliminary injunction that enjoined Hiedeman “from
enforcing Idaho Code §§ 18-606 and 18-608(1) for those rea-
sons and on those grounds set forth in the Memorandum Deci-
sion and Order entered on September 23, 2011.” Hiedeman
filed a timely notice of appeal and McCormack cross-
appealed.
In this case, Hiedeman asserts that (1) the district court
applied the incorrect legal standard for granting a preliminary
injunction, and (2) based its decision on clearly erroneous
facts. Additionally, Hiedeman asserts that the preliminary
injunction is overbroad to the extent that it grants relief
beyond McCormack. In her cross-appeal, McCormack con-
tends that the district court should have enjoined enforcement
of Idaho Code § 18-606 in conjunction with both §§ 18-
608(1) and 18-608(2). Additionally, McCormack asserts that
she has standing to challenge the enforcement of Chapter 5,
the Pain-Capable Unborn Child Protection Act (including
Idaho Code §§ 18-505 – 18-507).
JURISDICTION
This court has jurisdiction pursuant to 28 U.S.C.
§ 1292(a)(1).
STANDARD OF REVIEW
We review the district court’s grant of a preliminary injunc-
tion for abuse of discretion. Am. Trucking Ass’ns, Inc. v. City
of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). A dis-
trict court abuses its discretion if it bases its decision on an
erroneous legal standard or clearly erroneous findings of fact.
Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir.
2009) (citation omitted). Application of an incorrect legal
standard for preliminary relief or with regard to the underly-
MCCORMACK v. HIEDEMAN 10923
ing issues in the case are grounds for reversal. See Earth
Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1298 (9th Cir.
2003); Sports Form, Inc. v. United Press Int’l, Inc., 686 F.2d
750, 752 (9th Cir. 1982). The district court’s interpretation of
underlying legal principles is subject to de novo review. Sw.
Voter Reg. Educ. Project v. Shelley, 344 F.3d 914, 918 (9th
Cir. 2003).
DISCUSSION
I. The district court did not abuse its discretion in deter-
mining that McCormack would likely succeed with
her facial constitutional challenges to Idaho Code
§§ 18-606 and 18-608(1).
“A plaintiff seeking a preliminary injunction must establish
that [s]he is likely to succeed on the merits, that [s]he is likely
to suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in [her] favor, and that an
injunction is in the public interest.” Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7, 20 (2008).
This case turns on the first factor—whether McCormack
established that she was likely to succeed on the merits.
Hiedeman contends that the U.S. District Court’s conclusion
concerning the probability of success is based on incorrect
legal analysis and unsupported factual determinations. Hiede-
man is wrong on both counts.
1. The U.S. District Court did not employ an erroneous
legal standard.
The district court rested its decision to grant the prelimi-
nary injunction on the “undue burden test” set out in Planned
Parenthood v. Casey, 505 U.S. 833 (1992). Prosecuting attor-
ney Hiedeman does not argue that the U.S. District Court’s
use of Casey is an erroneous legal standard. Instead, Hiede-
man argues that “[t]he rationale for [abortion] statutes — the
10924 MCCORMACK v. HIEDEMAN
woman’s health and safety — applies with no less force
where the woman rather than another person performs the
abortion.” Thus, he argues that the U.S. District Court erred
in determining that McCormack was likely to succeed on the
merits. We disagree.
a. History of Abortion Statutes.
Historically, laws regulating abortion have sought to further
the state’s interest in protecting the health and welfare of
pregnant women, who alone bear the burden and risks of
pregnancies. With this interest in mind, abortion statutes were
first enacted to protect pregnant females from third parties
providing dangerous abortions. See Roe v. Wade, 410 U.S.
113, 151 (1973) (recognizing that, the purpose of abortion
“laws in the late 19th and early 20th centuries did focus on the
State’s interest in protecting the woman’s health rather than
in preserving the embryo and fetus.”); Abele v. Markle, 342
F. Supp. 800, 806 (D.C. Conn. 1972) (“abortions performed
before [1867], even under the best of then known medical
practices, created grave risks for the health and life of the
mother. There can be no doubt that this was an evil known to
and appreciated by the Nineteenth Century legislators.”);
State v. Ashley, 701 So. 2d 338, 340 (Fla. 1997) (“At common
law, while a third party could be held criminally liable for
causing injury or death to a fetus, the pregnant woman could
not be.” (citing State v. Carey, 76 Conn. 342 (1904) (differen-
tiating between those actions by a third party and those taken
upon oneself))).
As a result, abortion statutes have traditionally criminalized
the behavior of third parties to protect the health of pregnant
women. See id. As one court noted:
The obvious purpose [of the abortion statute enacted
in 1846] was to protect the pregnant woman. When
one remembers that the passing of the statute pre-
dated the advent of antiseptic surgery, the Legisla-
MCCORMACK v. HIEDEMAN 10925
ture’s wisdom in making criminal any invasion of
the woman’s person, save when necessary to pre-
serve her life, is unchallengeable.
People v. Nixon, 201 N.W. 2d 635, 639 (Mich. App. 1972);
see also Gaines v. Wolcott, 167 S.E. 2d 366, 370 (Ga. App.
1969) (recognizing that, “the appalling, unsanitary and unpro-
fessional conditions under which . . . illegal operations are in
fact performed warrant the protection of the law to women.”).
[1] Most modern state criminal statutes continue to apply
criminal liability to third parties who perform abortion in a
manner not proscribed by the statute. These statutes, known
as physician-only statutes, impose criminal liability on anyone
other than a licensed physician from performing abortions.
But many of these same criminal statutes expressly exempt
women from criminal liability for obtaining an abortion and
do not hold them liable for actions or inactions that affect
their pregnancy outcomes.3 When state statutes do not
3
See e.g., Alaska Stat. § 11.41.289 (liability for “assault of an unborn
child” does not apply to actions “committed by a pregnant woman against
herself and her own unborn child”); Ark. Code Ann. §§ 5-61-101(c), 5-61-
102(c) (“Nothing in this section shall be construed to allow the charging
or conviction of a woman with any criminal offense in the death of her
own unborn child in utero”); Fla. Stat. § 782.36 (“A patient receiving a
partial-birth-abortion procedure may not be prosecuted under this act.”);
720 Ill. Comp. Stat. 5/9-1.2(b) (criminal liability for intentional homicide
of an unborn child does not apply to “the pregnant woman whose unborn
child is killed”); Kan. Stat. Ann. § 65-6703(e) (“A woman upon whom an
abortion is performed shall not be prosecuted under this section . . . .”);
Ky. Rev. Stat. Ann. § 507A.010(3) (“nothing in this chapter shall apply to
any acts of a pregnant woman that caused the death of her unborn child”);
La. Rev. Stat. Ann. § 14:87A.(2) (penalties for criminalized abortions not
applicable to pregnant women having abortions); Minn. Stat. § 609.266(excluding the “pregnant woman” from liability for “crimes against
unborn children”); Neb. Rev. Stat. § 28-335 (providing “[n]o civil or crim-
inal penalty . . . against the patient upon whom the abortion is per-
formed”); Ohio Rev. Code Ann. § 2919.17(I)(expressly excluding women
from liability for post-viability abortions); 18 Pa. Cons. Stat. Ann. § 2608
10926 MCCORMACK v. HIEDEMAN
expressly exempt pregnant women, state courts interpreting
them have concluded that pregnant women are exempt from
criminal prosecution.4
b. The Supreme Court has not authorized the crimi-
nal prosecution of women for seeking abortion
care.
[2] Consistent with this history, there is no Supreme Court
precedent that recognizes or suggests that third party criminal
liability may extend to pregnant women who obtain an abor-
tion in a manner inconsistent with state abortion statutes. Nev-
ertheless, prosecuting attorney Hiedeman asserts that under
(exempting pregnant women from liability “in regards to crimes against
her unborn child”); Tex. Penal Code Ann. § 19.06(1) (exempting the
woman from liability for “death of an unborn child”); Utah Code Ann.
§ 76-7-314.5(2) (“A woman is not criminally liable for (a) seeking to
obtain, or obtaining, an abortion that is permitted by this part; or (b) a phy-
sician’s failure to comply [with specified statutes.]”); Vt. Stat. Ann. tit. 13
§ 101 (“However, the woman whose miscarriage is caused or attempted
shall not be liable to the penalties prescribed by this section.”); Wis. Stat.
Ann. § 940.13 (providing no fine or imprisonment for a woman who
obtains an abortion or violates any provision of an abortion statute).
4
See e.g., State v. Ashley, 701 So. 2d 338, 340 (Fla. 1997) (holding that
a woman possessed immunity from criminal prosecution “for causing
injury or death to [her] fetus”); State v. Aiwohi, 123 P.3d 1210, 1224
(Haw. 2005) (holding that, the definition of “person” in the Hawaii man-
slaughter statute did not include a fetus, and thus did not apply when a
woman caused the death of her fetus by smoking crystal methamphet-
amine); Hillman v. State, 503 S.E. 2d 610, 611 (Ga. App. 1998) (holding
that the Georgia criminal abortion statute does not criminalize a pregnant
woman’s actions in securing an abortion, regardless of the means used);
State v. Barnett, 437 P.2d 821, 822 (Or. 1968) (recognizing that a reading
of the Oregon criminal statute “indicates that the acts prohibited are those
which are performed upon the mother rather than any action taken by
her”). Although these cases generally find that a woman cannot be held
criminally liable, their decisions rest primarily on the state court’s inter-
pretation of state criminal law, and they did not involve an “undue bur-
den” analysis.
MCCORMACK v. HIEDEMAN 10927
current precedent physician-only provisions in abortion stat-
utes can be applied with equal force to pregnant women who
fail to comply with state abortion statutes. He argues that “[a]
State . . . has an interest in strict adherence to physician-only
requirements and need not, as a constitutional matter, carve
out an enforcement exception for women who take it upon
themselves to self-abort.” Prosecuting attorney Hiedeman
mistakenly relies on Roe, 410 U.S. 113, Casey, 505 U.S. 833,
Connecticut v. Menillo, 423 U.S. 9 (1975) (per curiam), and
Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam), to
argue that the Supreme Court has decided this issue, and thus,
McCormack is not likely to succeed on her claims.
First, Hiedeman asserts that under Roe, a state may consti-
tutionally prohibit anyone other than a licensed physician
from performing an abortion. In Roe, the Supreme Court rec-
ognized that the right to personal privacy under the Due Pro-
cess Clause of the Fourteenth Amendment is broad enough to
encompass a woman’s decision to have an abortion. 410 U.S.
at 153-54. Roe recognized, however, that there are some limi-
tations to this right because that right must be balanced
against the state’s important and legitimate interest in protect-
ing prenatal life and protecting women’s health. Id. at 162.
Hiedeman cites the following passage from Roe to support his
argument that McCormack can be held criminally liable for
failing to comply with Idaho’s abortion statutes:
The State has a legitimate interest in seeing to it that
abortion, like any other medical procedure, is per-
formed under circumstances that insure maximum
safety for the patient. This interest obviously extends
at least to the performing physician and his staff, to
the facilities involved, to the availability of aftercare,
and to adequate provision for any complication or
emergency that might arise.
Id. at 150 (emphasis added). Further, Hiedeman notes that
Roe held that “[t]he State may define the term ‘physician’ . . .
10928 MCCORMACK v. HIEDEMAN
to mean only a physician currently licensed by the State, and
may proscribe any abortion by a person who is not a physi-
cian as so defined.” Id. at 165. Hiedeman further argues that
Casey did not disturb this long-standing Supreme Court pre-
cedent. 505 U.S. at 856 (recognizing “the right of the woman
to choose to have an abortion before viability and to obtain it
without interference from the State,” but noting that, “[a]ll
abortion regulations interfere to some degree with a woman’s
ability to decide whether to terminate her pregnancy,” thus the
constitutionally critical concern is whether the regulations “in
[a] real sense deprive[ ] women of the ultimate decision”).
Hiedeman’s attempt to equate these Supreme Court princi-
ples with the Idaho statute at issue in this case is unpersua-
sive. These principles, embraced by the Supreme Court,
recognize that women’s health is an important interest for the
state and one that is considered in crafting abortion statutes.
These principles, however, in no way recognize, permit, or
stand for the proposition that a state may prosecute a pregnant
woman who seeks an abortion in a manner that may not be
authorized by the state’s statute, including when a pregnant
woman receives physician- prescribed medication to termi-
nate her pregnancy. Hiedeman’s reading of Roe and Casey
expands these Supreme Court holdings to reach an unintended
result.
Hiedeman’s reliance on Connecticut v. Menillo is equally
unpersuasive. In Menillo, the Supreme Court reinstated the
conviction of Patrick Menillo for attempting to procure an
abortion. Menillo, 423 U.S. at 9. “Menillo, a nonphysician
with no medical training, performed an abortion upon a
female in normal good health for a $400 fee.” State v.
Menillo, 368 A.2d 136, 137 (Conn. 1976). A jury found
Menillo guilty under a Connecticut statute, which prescribes
that “any person who gives or administers to any woman, or
advises or causes her to take or use anything . . . , with the
intent to procure upon her a miscarriage or abortion, unless
the same is necessary to preserve her life or that of her unborn
MCCORMACK v. HIEDEMAN 10929
child, shall be fined . . . or imprisoned.” Menillo, 423 U.S. at10 n.1. The Connecticut Supreme Court overturned Menillo’s
conviction, holding that the statute was “null and void” under
federal law. Id. at 9. The U.S. Supreme Court vacated and
reinstated Menillo’s conviction. Id. The U.S. Supreme Court
stated that Roe supported the “continued enforceablity of
criminal abortion statutes against nonphysicians.” Id. at 10.
The Court explained:
Roe teaches that a State cannot restrict a decision by
a woman, with the advice of her physician, to termi-
nate her pregnancy during the first trimester because
neither its interest in maternal health nor its interest
in the potential life of the fetus is sufficiently great
at that stage. But the insufficiency of the State’s
interest in maternal health is predicated upon the first
trimester abortion’s being as safe for the woman as
normal childbirth at term, and that predicate holds
true only if the abortion is performed by medically
competent personnel under conditions insuring max-
imum safety for the woman. . . . Even during the first
trimester of the pregnancy, therefore, prosecutions
for abortions conducted by nonphysicians infringe
upon no realm of personal privacy secured by the
Constitution against state interference.
Id. at 10-11.
Like Roe, Menillo also does not discuss the issue presented
here: whether the state can impose criminal liability on preg-
nant women for failing to abide by the state’s abortion stat-
utes. Menillo does not uphold the prosecution of pregnant
women who undergo abortions in a manner not prescribed by
statute. The statute at issue in Menillo was directed only
against the person who commits or attempts to commit the act
on the pregnant woman (i.e., it criminalized the actions of a
third party—a nonphysician). See id. at 10 n.1 (“Any person
who gives or administers to any woman . . . .”) (emphasis
10930 MCCORMACK v. HIEDEMAN
added). Thus, Menillo stands for the unremarkable proposi-
tion that states may prosecute unlicensed providers of unsafe,
“back-alley” abortions.
Prosecuting attorney Hiedeman also erroneously relies on
the more recent case of Mazurek v. Armstrong, 520 U.S. 968(1997) (per curiam). The Montana statute at issue in Mazurek
was aimed at stopping a physician assistant, who had legally
provided abortion services under the supervision of a physi-
cian, from continuing to provide that care. Armstrong v.
Mazurek, 94 F.3d 566, 566-67 (9th Cir. 1996). This court,
relying on Casey, held that the appellants in Mazurek had
demonstrated a “fair chance of success on the merits.” Id. at
568. The question before the Supreme Court in Mazurek was
whether a state could bar medical professionals other than
physicians from providing abortion services. Mazurek v. Arm-
strong, 520 U.S. 968, 969-72 (1997). Mazurek did not involve
an attempt to prosecute a woman for seeking a pre-viability
abortion. Consequently, like Hiedeman’s reliance on Menillo,
Hiedeman’s reliance on Mazurek is unavailing.
[3] Here, Idaho Code § 18-606(2) explicitly makes it a fel-
ony, for “[e]very woman who knowingly submits to an abor-
tion or solicits of another, for herself, the production of an
abortion, or who purposely terminates her own pregnancy
otherwise than by live birth” in a manner inconsistent with
Idaho’s abortion statutes. Idaho Code § 18-606(2), which
criminalizes the conduct of pregnant women—as opposed to
the conduct of a third-party performing the abortion—is, as
described above, different from any matter the U.S. Supreme
Court or this court has considered since Roe was handed
down. For the reasons explained below, it is likely that
McCormack will succeed on the merits because § 18-606(2)
imposes an undue burden on a woman’s ability to terminate
her pregnancy.
MCCORMACK v. HIEDEMAN 10931
c. The district court did not err in determining that
McCormack is likely to succeed on the merits.
The district court concluded that under Casey’s “undue bur-
den” test, McCormack established “that Idaho Code § 18-606places an undue burden on women’s decision to choose a pre-
viability abortion5 because it[ ] subjects women seeking abor-
tions in Idaho to criminal prosecution if those women fail to
ensure that their abortion providers comply with the require-
ments of Idaho Code § 18-608.” We agree with the district
court that at this stage, Idaho Code § 18-606 places an undue
burden on women’s decision to terminate a pre-viability preg-
nancy.
Although women have a Fourteenth Amendment right to
terminate a pre-viability pregnancy, that right has some limi-
tations. See Casey, 505 U.S. at 895. Women challenging an
abortion statute must demonstrate that the challenged abortion
statute places an “undue burden” on a woman’s ability to
decide whether to terminate her pregnancy. Id. at 874. “A
finding of undue burden is a shorthand for the conclusion that
a state regulation has the purpose or effect of placing a sub-
5
Casey recognized “the right of the woman to choose to have an abor-
tion before viability and to obtain it without interference from the State.”
505 U.S. at 846. Viability, according to Roe, “is usually placed at about
seven months (28 weeks) but may occur earlier, even at 24 weeks.” Roe,
410 U.S. at 160. Viability is a critical stage in a pregnancy because it is
at that time that “the fetus then presumably has the capability of meaning-
ful life outside the mother’s womb.” Id. at 163. Subsequent to Roe, the
Court in Planned Parenthood of Central Missouri v. Danforth, 428 U.S.
52, 63-64 (1976), affirmed that view but clarified that viability is “flexib-
[le]” and ultimately a “matter of medical judgment, skill, and technical
ability.” This is because the “time when viability is achieved may vary
with each pregnancy,” and thus, a “determination of whether a particular
fetus is viable is, and must be, a matter for the judgment of the responsible
attending physician.” Id. at 64. Thus, it is “not the proper function of the
legislature or the courts to place viability . . . at a specific point in the ges-
tation period.” Id.10932 MCCORMACK v. HIEDEMAN
stantial obstacle in the path of a woman seeking an abortion
of a nonviable fetus.” Id. at 877.
[4] Under Casey, the challenged Idaho abortion statute,
§ 18-606, constitutes a substantial obstacle in the path of
women seeking an abortion of a nonviable fetus. Under Idaho
Code § 18-606, “[e]very woman who knowingly submits to
an abortion or solicits of another, for herself, the production
of an abortion, or who purposely terminates her own preg-
nancy otherwise than by a live birth” is subject to felony
charges, unless the abortion was performed as permitted by
the remainder of Title 8, Chapter 6 of the Idaho Code, includ-
ing Idaho Code § 18-604 through 18-615. A pregnant woman
who violates this statute is subject to the possibility of up to
five years imprisonment. Idaho Code § 18-606(2). The
remainder of Chapter 6 details the manner in which a woman
in Idaho may obtain a lawful abortion.6
[5] Chapter 6 puts an undue burden on women seeking
abortions by requiring them to police their provider’s compli-
ance with Idaho’s regulations. If a woman terminates her
pregnancy during the first trimester but fails to ask the physi-
cian whether the office has made “satisfactory arrangements
with one or more acute care hospitals within reasonable prox-
6
Under § 18-608(1), a woman may terminate her pregnancy during the
first trimester if and when the abortion is performed by a physician
in a hospital or in a physician’s regular office or a clinic which
office or clinic is properly staffed and equipped for the perfor-
mance of such procedures and respecting which the responsible
physician or physicians have made satisfactory arrangements
with one or more acute care hospitals within reasonable proxim-
ity thereof providing for the prompt availability of hospital care
as may be required due to complications or emergencies that
might arise.
Under § 18-608(2), a woman may terminate her pregnancy during the
second trimester of pregnancy, but it must be “performed in a hospital and
is, in the judgment of the attending physician, in the best medical interest
of such pregnant woman.”
MCCORMACK v. HIEDEMAN 10933
imity thereof providing for the prompt availability of hospital
care as may be required due to complications or emergencies
that might arise,” she would be subject to a felony charge if
the physician has not made such arrangements. Idaho Code
§ 18-608(1). If a woman finds a doctor who provides abor-
tions during the second trimester of a woman’s pregnancy, but
the doctor fails to tell the pregnant woman that the abortion
will be performed in a clinic as opposed to a hospital, the
pregnant woman would be subject to felony charges. Idaho
Code § 18-608(2). Or, as is the case here, if a woman elects
to take physician prescribed pills obtained over the internet to
end her pregnancy, which is not authorized by statute, she is
subject to felony charges. Idaho Code §§ 18-608(1)-18-
608(3).
There can be no doubt that requiring women to explore the
intricacies of state abortion statutes to ensure that they and
their provider act within the Idaho abortion statute frame-
work, results in an “undue burden” on a woman seeking an
abortion of a nonviable fetus.7 Under this Idaho statute, a
pregnant woman in McCormack’s position has three options:
(1) carefully read the Idaho abortion statutes to ensure that she
and her provider are in compliance with the Idaho laws to
avoid felony prosecution; (2) violate the law either knowingly
or unknowingly in an attempt to obtain an abortion; or (3)
refrain altogether from exercising her right to choose an abor-
tion.
7
Because McCormack has established that she will likely succeed on the
merits, we do not discuss whether “there is a serious question going to the
merits.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th
Cir. 2011). As simply a reconfiguration of the four-element test in Winter,
555 U.S. at 20, the “sliding scale” approach to preliminary injunctions
remains valid: “ ‘A preliminary injunction is appropriate when a plaintiff
. . . demonstrates that serious questions going to the merits were raised and
the balance of hardships tips sharply in the plaintiff’s favor.’ ” Alliance for
Wild Rockies, 632 F.3d at 1134-35 (quoting Lands Council v. McNair, 537
F.3d 981, 986 (9th Cir. 2008) (en banc)). Given that McCormack has dem-
onstrated a likelihood of success on the merits, McCormack would also
succeed under this lesser standard.
10934 MCCORMACK v. HIEDEMAN
This Idaho statute heaps yet another substantial obstacle in
the already overburdened path that McCormack and pregnant
women like her face when deciding whether to obtain an
abortion. For many women, the decision whether to have an
abortion is a difficult one involving the consideration of
weighty ethical, moral, financial, and other considerations.8
Gonzales v. Carhart, 550 U.S. 124, 184 n.7 (2007) (Ginsburg,
J., dissenting); see also Thomas D. Kerenyi et al., Reasons for
Delayed Abortion: Results of Four Hundred Interviews, 117
Am. J. of Obstetrics & Gynecology 299 (1973). Among other
things, women must contemplate whether they are ready for
a child or another child, including considering whether that
child conforms with plans for future education and career
goals. Lawrence B. Finer et al., Reasons U.S. Women Have
Abortions: Quantitative and Qualitative Perspectives, 37
Persp. on Sexual and Reprod. Health 110, 113 (2005) (noting
that a quarter of women cite that they are not ready for a child
or another child as one of the most important reasons for not
having a child). Additionally, women often take into account
the perspective of their family members. See Aida Torres &
8
The mental anguish discussed here should not be confused with the
mental health issues that allegedly arise after a woman has an abortion.
Numerous medical studies have denounced any link between having an
abortion and later mental illnesses. See Carhart, 550 U.S. at 184 n. 7 (Gin-
sburg, J., dissenting) (noting “ ‘neither the weight of the scientific evi-
dence to date nor the observable reality of 33 years of legal abortion in the
United States comports with the idea that having an abortion is any more
dangerous to a woman’s long-term mental health than delivering and par-
enting a child that she did not intend to have’ ” (quoting Susan A. Cohen,
Abortion and Mental Health: Myths and Realities, 9 Guttmacher Policy
Rev. 8 (2006))); see also Nancy E.Adler et al., Psychological Responses
After Abortion, 248 Sci. 41 (1990); American Psychological Association,
Report of the APA Task Force on Mental Health and Abortion 4 (2008),
available at http://www.apa.org/pi/women/programs/abortion/mental-
health.pdf (concluding that “[t]he best scientific evidence published indi-
cates that among adult women who have an unplanned pregnancy the rela-
tive risk of mental health problems is no greater if they have a single
elective first-trimester abortion than if they deliver that pregnancy”)
(emphasis omitted).
MCCORMACK v. HIEDEMAN 10935
Jacqueline D. Forrest, Why do Women Have Abortions?, 20
Fam. Plan. Persp. 169, 176 (1988) (concluding that more than
20 percent of women “chose to have an abortion at least in
part because their husband or partner wanted them to” and
more than 25 percent of minors were influenced by their par-
ents’ wishes).
Further, McCormack and other women in her position,
have to grapple with the cost of the abortion itself as well as
the long-term financial implications of not having one. See
U.S. Dep’t of Agric., Expenditures on Children by Families,
at iv (2012) (finding that for a two-child, husband-wife fam-
ily, annual expenses ranged from $8,760 to $9,970, on aver-
age for households with before tax income less than $59,410
and that the financial cost of having a child “generally
increase[s] with the age of the child”). Because they do not
have the financial wherewithal to confirm suspected pregnan-
cies, low-income women are often forced to wait until later in
their pregnancies to obtain an abortion. Lawrence B. Finer et
al., Timing of Steps and Reasons for Delays in Obtaining
Abortions in the United States, 74 Contraception 334, 343
(2006) (hereinafter Timing of Steps) (finding “[l]ower-income
women typically take more time to confirm a suspected preg-
nancy, which could relate to the cost of a home pregnancy test
and the difficulty in getting a test from a clinic or a doctor.”);
see also Diana G. Foster et al., Predictors of Delay in Each
Step Leading to an Abortion, 77 Contraception 289, 292
(2008) (finding that many women report being delayed by
financial factors). Delayed confirmation compounds the
financial difficulties, as the cost of abortion services increases
throughout the gestational period.
Many women, like McCormack, must travel long distances
to the closest abortion provider. See Casey, 505 U.S. at 885-
86.9 This requires a pregnant woman take time to miss work,
9
Eighty-seven percent of all counties in the United States are without an
abortion provider. Guttmacher Institute, In Brief: Facts on Induced Abor-
10936 MCCORMACK v. HIEDEMAN
find childcare, make arrangements for travel to and from the
hospital and/or clinic, and to possibly make arrangements to
stay overnight to satisfy the 24-hour requirement. See id. at
n.9 (Blackmun, J., concurring). In fact, this has been shown
to be a significant factor when a woman delays an abortion,
and low-income women are more likely to have this problem.
Timing of Steps, at 343. Once at the clinic, pregnant women
may have to further manage “the harassment and hostility of
antiabortion protestors demonstrating outside a clinic.” Casey,
505 U.S. at 885-86 (citation omitted); see Rachel K. Jones &
Kathryn Kooistra, Abortion Incidence and Access to Services
in the United States, 2008, 43 Persp. on Sexual and Reprod.
Health 41, 48 (2011) (finding that 57% of nonhospital provid-
ers experienced antiabortion harassment in 2008; levels of
harassment were particularly high in the Midwest (85%) and
the South (75%)).
[6] While the Supreme Court has permitted many restric-
tions that make obtaining an abortion more difficult, particu-
larly for low-income women, see Casey, 505 U.S. at 886-87,
it has not authorized the criminal prosecution of women seek-
ing abortion care. Imposing criminal liability upon women for
their providers’ purported failure to comply with state abor-
tion in the United States 2 (2011), available at http://www.guttmacher.org/
pubs/fb_induced_abortion.pdf. Rural women are even more affected by
the lack of abortion providers. Ninety-seven percent of nonmetropolitan
counties have no abortion provider. American Congress of Obstetricians
and Gynecologists, Health Disparities for Rural Women (Opinion No.
429), at 2 (2009). Nonhospital abortion providers estimate that 19% of
their patients travel 50-100 miles, and 8% travel more than 100 miles. Id.It is even worse in Idaho. In Idaho in 2008, there were only 4 abortion pro-
viders and 95% of Idaho counties were without an abortion provider. Gutt-
macher Institute, State Facts about Abortion: Idaho 1-2 (2011), available
at http://www.guttmacher.org/pubs/sfaa/pdf/idaho.pdf. In fact, in 2010, of
the 1,510 abortions performed on Idaho residents, nearly half were per-
formed out of state. Idaho Bureau of Vital Records and Health Statistics,
Induced Abortion Annual Report 129 (2010), available at
http://www.healthandwelfare.idaho.gov/Portals/0/Health/Statistics/2010
%20Reports/InducedAbortion.pdf.
MCCORMACK v. HIEDEMAN 10937
tion regulations places a substantial obstacle in the path of
women seeking an abortion. Accordingly, McCormack is
likely to succeed on her claim that Chapter 6 constitutes an
undue burden on a woman’s constitutional right to terminate
her pregnancy before viability.
2. The district court did not base its decision on clearly
erroneous findings of fact.
A district court’s factual findings that underlie a prelimi-
nary injunction are reviewed for clear error, and may be
reversed only if “illogical, implausible, or without support in
inferences that may be drawn from the facts in the record.”
Am. Trucking Assn’s, Inc. v. City of Los Angeles, 660 F.3d
384, 395 (9th Cir. 2011) (quoting United States v. Hinkson,
585 F.3d 1247, 1251 (2009)(en banc)).
Prosecuting attorney Hiedeman asserts that the district
court relied on clearly erroneous findings of fact. Specifically,
he asserts that the evidence did not establish that McCormack
used “FDA approved” medication prescribed by a physician.
We disagree.
The district court explained that for McCormack to succeed
on the merits of her “facial challenge,” she must meet the
standard in Casey: demonstrate that the statute presents a sub-
stantial obstacle to a woman’s choice to undergo an abortion.
The district court agreed with McCormack that at the “early
stage in the proceedings,” Idaho Code § 18-608 puts, “a
woman . . . to the Hobson’s choice [sic] of finding a means
to police her healthcare provider’s actions, or being threat-
ened with criminal prosecution for her healthcare provider’s
failings.” As in this court, Hiedeman argued before the district
court that the “long line of [Supreme Court] cases” demon-
strates that a pregnant woman who undergoes an abortion can
be charged with a felony for violating abortion statutes. In
addressing Hiedeman’s argument, the district court stated
that, McCormack “clarified at oral argument that the FDA-
10938 MCCORMACK v. HIEDEMAN
approved medication she procured through the internet was
prescribed by a physician.” Emphasis added. The district
court reasoned that based on this information, one could argue
that the abortion was “ ‘performed’ by a physician.” The dis-
trict court explained that “[u]nder these facts, she could be
criminally prosecuted if the state determined that the physi-
cian had not complied with Idaho statutory requirements.” In
sum, the court concluded that McCormack had demonstrated
that she was “likely to succeed on the merits of her facial
challenge to § 18-606.” Emphasis added.
[7] The district court’s findings of fact, namely that
McCormack received from a physician FDA-approved medi-
cation used to induce an abortion, were not clearly erroneous.
These facts were offered in both McCormack’s declaration
and her complaint. McCormack stated in her declaration that
the medication was “approved for use in the United States”
and that these medications “are currently offered for sale over
the internet by abortion providers outside southeast Idaho.” In
her complaint, McCormack stated that “physicians providing
abortion services in the United States often prescribe medica-
tions approved by the U.S. Federal Drug Agency (“FDA”) to
cause women to abort their pregnancies medically, i.e., non-
surgically.” She also stated in her complaint that she consid-
ered “ingesting one or more medications she reasonably
believed to have been prescribed by a health care provider
practicing outside Bannock County, Idaho to induce [her]
abortion.” There is no disputing that an affidavit and a com-
plaint may be the basis for a preliminary injunction unless the
facts are substantially controverted by counter-affidavits. See
K-2 Ski Co. v. Head Ski Co., 467 F.2d 1087, 1088 (9th Cir.
1972) (“A verified complaint or supporting affidavits may
afford the basis for a preliminary injunction . . . .”). Here,
prosecuting attorney Hiedeman did not offer any controverted
affidavits as to whether the pills were obtained from a physi-
cian over the internet or whether they were FDA-approved.
Additionally, the district court merely commented that oral
argument provided clarity to the extent that the complaint and
MCCORMACK v. HIEDEMAN 10939
affidavit had to be carefully worded because of the potential
for McCormack’s prosecution.
These factual findings cannot be said to be “clearly errone-
ous” such that the court is left with a definite and firm convic-
tion that the district court committed a clear error of
judgment. United States v. Hinkson, 585 F.3d 1247, 1260-61
(9th Cir. 2009) (en banc); Alaimalo v. United States, 645 F.3d
1042, 1060 (9th Cir. 2011) (“To be clearly erroneous, a deci-
sion must strike [the court] as more than just maybe or proba-
bly wrong; it must, as one member of this court recently
stated during oral argument, strike us as wrong with the force
of a five-week-old, unrefrigerated dead fish.”).
[8] Accordingly, we conclude that the district court’s find-
ings of fact were not clearly erroneous and the court did not
abuse its discretion in relying on those findings.
II. The district court abused its discretion in crafting an
overbroad preliminary injunction.
The scope of a preliminary injunction is generally reviewed
for abuse of discretion. SEC v. Interlink Data Network of Los
Angeles, Inc., 77 F.3d 1201, 1204 (9th Cir. 1996).
The district court’s preliminary injunction states that prose-
cuting attorney Hiedeman “is restrained from enforcing Idaho
Code §§ 18-606 and 18-608(1).” Hiedeman argues that the
district court’s preliminary injunction is overbroad to the
extent that it grants relief beyond McCormack herself. For the
reasons set forth below, we conclude that the preliminary
injunction is overbroad and should be limited to enforcement
of the applicable code sections against McCormack only.
The Supreme Court has cautioned that “injunctive relief
should be no more burdensome to the defendant than neces-
sary to provide complete relief to the plaintiffs.” Califano v.
Yamasaki, 442 U.S. 682, 702 (1979). Injunctive relief is an
10940 MCCORMACK v. HIEDEMAN
“extraordinary remedy,” Winter, 555 U.S. at 24, and “must be
tailored to remedy the specific harm alleged.” Park Vill.
Apartment Tenants Ass’n v. Mortimer Howard Trust, 636
F.3d 1150, 1160 (9th Cir. 2011). A district court abuses its
discretion by issuing an “overbroad” injunction. Id.; see also
Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir.
2009). Moreover, the purpose of a preliminary injunction is to
preserve the status quo between the parties pending a resolu-
tion of a case on the merits. U.S. Philips Corp. v. KBC Bank
N.V., 590 F.3d 1091, 1094 (9th Cir. 2010).
[9] At least one Supreme Court decision suggests that fed-
eral courts should only enjoin enforcement of criminal stat-
utes against the plaintiffs before the court. In Doran v. Salem
Inn, Inc., the Court said “neither declaratory nor injunctive
relief can directly interfere with enforcement of contested
statutes or ordinances except with respect to the particular
federal plaintiffs, and the State is free to prosecute others who
may violate the statute.” 422 U.S. 922, 931 (1975). We
recently held that a district court abused its discretion in enter-
ing an overbroad preliminary injunction that enjoined “the
rules themselves as opposed to enjoining their enforcement as
to the plaintiffs before [it].” Stormans, 586 F.3d at 1140.
[10] There is no need for the preliminary injunction in this
case to bar enforcement of § 18-606 against anyone except
McCormack in order to preserve the status quo between the
parties. The fact that McCormack may ultimately be entitled
to a declaratory judgment stating that § 18-606 is unconstitu-
tional on its face (which would clearly bar prosecution of any
pregnant woman under the statute) does not mean that the
preliminary injunction should apply so broadly, at least in the
absence of class certification.
[11] Accordingly, we conclude that the district court’s pre-
liminary injunction should be narrowed so that it enjoins only
future prosecution of McCormack.
MCCORMACK v. HIEDEMAN 10941
CROSS-APPEAL
In her cross-appeal, McCormack makes two arguments: (1)
that the district court should have enjoined enforcement of
Idaho Code § 18-606 in conjunction with both §§ 18-608(1)
and 18-608(2); and (2) that she has standing to challenge the
enforcement of Chapter 5, the Pain-Capable Unborn Child
Protection Act (“PUCPA”).
III. The district court erred in not enjoining the enforce-
ment of Idaho Code § 18-606 in conjunction with
both §§ 18-608(1) and 18-608(2).
In her cross-appeal, McCormack contends that the district
court should have enjoined enforcement of Idaho Code § 18-
606 in conjunction with both §§ 18-608(1) and 18-608(2). In
granting McCormack’s motion for a preliminary injunction,
the district court limited the injunction to § 18-608(1), which
is the code section governing abortions during the first trimes-
ter of pregnancy. The district court refused to extend the pre-
liminary injunction to cover § 18-608(2), which is the code
section governing abortions during the second trimester of
pregnancy. In its order granting the preliminary injunction,
the court stated that it relied on those reasons set forth in the
court’s September 23, 2011 memorandum. In its September
23, 2011 Memorandum Decision, the district court held that
McCormack’s potential punishment for violating Idaho Code
§ 18-606 did not extend to all challenged subsections. The
district court found that “[b]ased on the facts alleged, there
can be no argument that [McCormack] violated either § 18-
608(2) or § 18-608(3).” Thus, the court found that McCor-
mack “does not face any threat of prosecution under these
subsections.” Accordingly, the court found that there was not
a case or controversy as to § 18-608(2) or § 18-608(3).
McCormack alleges that the district court erred because the
basis for the district court’s injunction against enforcement of
Idaho Code § 18-608(1) applies with equal force to § 18-
10942 MCCORMACK v. HIEDEMAN
608(2). She notes that the criminal complaint fails to cite
which statute—either § 18-608(1) or § 18-608(2)—Hiedeman
was charging McCormack under, in connection with § 18-
606. Further, the criminal complaint makes no reference to
the trimester of McCormack’s pregnancy at the time of the
alleged abortion. Thus, the threat she faced (and still faces
based on Hiedeman’s affidavit that he has not yet determined
whether to re-commence the criminal action) was that she
would be prosecuted for violating either subsection of the
statute. For the reasons set forth below, we agree with McCor-
mack that the district court erred in failing to extend the pre-
liminary injunction to § 18-608(2) because McCormack faces
a genuine threat of prosecution under this subsection of the
statute.
This court has recognized that “neither the mere existence
of a proscriptive statute nor a generalized threat of prosecu-
tion satisfies the ‘case or controversy’ requirement.” Thomas
v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139
(9th Cir. 2000) (en banc). Rather, a plaintiff must face a “gen-
uine threat of prosecution.” Id. In evaluating the genuineness
of a claimed threat of prosecution, courts examine three fac-
tors: (1) “whether the plaintiffs have articulated a ‘concrete
plan’ to violate the law in question,” (2) “whether the prose-
cuting authorities have communicated a specific warning or
threat to initiate proceedings,” and (3) “the history of past
prosecution or enforcement under the challenged statute.” Id.;
see also Babbitt v. United Farm Workers Nat’l Union, 442
U.S. 289, 298 (1979) (holding that, “[w]hen contesting the
constitutionality of a criminal statute, it is not necessary that
the plaintiff first expose himself to actual arrest or prosecution
to be entitled to challenge the statute that he claims deters the
exercise of his constitutional rights.”) (citation and alterations
omitted).10
10
These principles extend to the abortion context. In Griswold v. Con-
necticut, 381 U.S. 479, 481 (1965), the Supreme Court concluded that a
MCCORMACK v. HIEDEMAN 10943
[12] Applying these principles here, McCormack faced
prosecution and continues to be threatened with prosecution
as a result of her alleged violation of Idaho Code § 18-606, in
conjunction with either § 18-608(1) or § 18-608(2). First,
McCormack has allegedly already violated Idaho Code § 18-
606, which makes it a felony to obtain an abortion in a man-
ner not authorized by the Idaho abortion statutes. There is no
question that prosecuting attorney Hiedeman filed felony
charges against McCormack for allegedly violating Idaho
Code § 18-606. But, the criminal complaint fails to specify
whether in conjunction with § 18-606 Hiedeman brought
charges under § 18-608(1), regulating abortions during the
first trimester, or § 18-608(2), regulating abortions during the
second trimester. Further, there is nothing in the criminal
complaint that states the gestional age of the fetus or the tri-
mester that McCormack was in when the alleged abortion
occurred. It is also undisputed that the state court dismissed
these charges without prejudice and Hiedeman has not
decided whether to re-file the charges against McCormack.
medical director who had been convicted for giving information, instruc-
tion, and medical advice regarding contraception had standing to challenge
the constitutionality of the Connecticut law. Then in Carey v. Population
Servs., Int’l, 431 U.S. 678, 682-84 (1977), the Court held that a corpora-
tion that had been advised by New York authorities that they were violat-
ing the New York statute prohibiting sale of contraception to minors under
16, and had at least been threatened with prosecution on at least one occa-
sion, had standing to challenge the statute. Finally, in Planned Parenthood
of Idaho, Inc. v. Wasden, 376 F.3d 908, 916-18 (9th Cir. 2004), an abor-
tion provider, Dr. Glenn Weyhrich, stated his clear intention to continue
to perform abortions for his patients, including some minors, despite a
statute prohibiting him from performing abortions on minors. Id. at 916.
We concluded that Dr. Weyhrich’s clear intention resulted in a “suffi-
ciently concrete and imminent injury-possible prosecution and
imprisonment-to challenge the provisions that ban abortion providers from
performing abortions on minors.” Id. (citing Diamond v. Charles, 476 U.S.
54, 65 (1986) (“A physician has standing to challenge an abortion law that
poses for him a threat of criminal prosecution.”)). Therefore, we held that
Dr. Weyhrich had standing based upon a threat of prosecution by the
county prosecuting attorney. Id. at 917.
10944 MCCORMACK v. HIEDEMAN
Thus, McCormack is susceptible to Hiedeman re-
commencing the criminal charges against McCormack under
§ 18-606 in conjunction with either § 18-608(1) or § 18-
608(2). Second, Hiedeman, in his capacity as county prosecu-
tor, has communicated a specific threat on two occasions to
bring felony charges against McCormack, when he: (1) actu-
ally brought a criminal complaint against McCormack, and
(2) filed a declaration stating that he may still re-file the com-
plaint. Finally, this history of past prosecution, in the form of
an actual criminal complaint being filed against McCormack
under Idaho Code § 18-606, weighs in favor of a preliminary
injunction for McCormack with regard to § 18-606 in con-
junction with both § 18-608(1) and § 18-608(2).
[13] Thus the possibility exists that Hiedeman was going
to (and may still) bring criminal charges against McCormack
based on her alleged violation of either § 18-608(1) or § 18-
608(2).11 Accordingly, we conclude that the district court
erred in failing to extend the preliminary injunction to § 18-
608(2) in conjunction with § 18-606.
IV. McCormack does not have standing to seek pre-
enforcement prospective relief against the enforce-
ment of the PUCPA.
In her cross-appeal, McCormack also argues that she has
standing to challenge the enforcement of Chapter 5, the
“PUCPA.” PUCPA categorically bans non-therapeutic abor-
tions at and after twenty weeks. “Any person who intention-
ally or recklessly performs or attempts to perform an abortion
in violation of the provisions of section 18-505, Idaho Code,
11
It appears to some extent Hiedeman concedes this argument. In his
reply brief, Hiedeman states in a footnote that, “As [he] understands the
injunction, he is precluded from initiating any prosecution under § 18-606
against the mother of an allegedly aborted fetus.” Therefore, Hiedeman
appears to agree that he cannot bring criminal charges under either § 18-
606(1) or § 18-606(2).
MCCORMACK v. HIEDEMAN 10945
is guilty of a felony.” Idaho Code § 18-507. PUCPA further
states: “No penalty shall be assessed against the woman upon
whom the abortion is performed or attempted to be per-
formed.” Id. PUCPA also provides civil remedies in the form
of actual damages to “[a]ny woman upon whom an abortion
has been performed in violation of the [PUCPA] or the father
of the unborn child.” Idaho Code § 18-508(1). PUCPA further
permits certain persons, including a prosecuting attorney, to
file an action for injunctive relief against an abortion provider
who violates § 18-505 by performing an abortion at or after
twenty weeks.12 Idaho Code § 18-508(2).
PUCPA was not enacted without controversy. Idaho’s own
Attorney General explained in a 17-page letter that PUCPA
“plainly intends to erect a substantial obstacle to the right to
choose,” and “there is strong reason to believe that [PUCPA]
is unconstitutional under existing precedent.”13
12
It is worth noting that this law is directed at a relatively small percent-
age of abortions, both nationally and within Idaho. In 2008, the most
recent year for which abortion statistics are available from the Centers for
Disease Control and Prevention, there were approximately 825,564 abor-
tions performed in the United States. Karen Pazol et al., Centers for Dis-
ease Control and Prevention, Abortion Surveillance-United States, 2008,
at 1 (2011). Of these abortions, only 7.3% were performed at 14-20
weeks’ gestation, and only 1.3% performed in or after the 21st week of
gestation. Id. In Idaho, in 2010, there were 1,510 abortions. Idaho Bureau
of Vital Records, supra at 129; id. at 167 (The Idaho population in 2010,
was 1,567,582). Of the 1,510 abortions, only 6 were performed at 16-20
weeks’ gestation, 5 performed at 21-24 weeks’ gestation, and 1 performed
in or after the 25th week of gestation. Id. at 133.
13
The Attorney General noted that Supreme Court precedent establishes:
the Act’s various restrictions operate, at least in part, prior to via-
bility. First, twenty weeks precedes the usual viability point, as
recognized in Roe and Danforth, by at least four weeks . . . . Sec-
ond, although technology advances since the 1970s have made it
easier to sustain life outside the womb at an earlier state, it seems
clear that, in at least a fair percentage of pregnancies today, the
fetus is not viable by twenty weeks.
Thus, “[b]ecause the Act’s restrictions apply at twenty weeks, they operate
pre-viability for at least some portion of pregnancies.” With regard to the
legislative findings, the Idaho Attorney General admits that these findings
“do not disturb [its] analysis.”
10946 MCCORMACK v. HIEDEMAN
The district court determined that McCormack lacked
standing to challenge enforcement of PUCPA and, for that
reason, refused to issue a preliminary injunction enjoining
Hiedeman from criminally prosecuting or bringing any civil
action for injunctive relief against abortion providers. The dis-
trict court concluded that McCormack does not allege that she
was pregnant when she filed this action nor does she allege
that her past conduct in purchasing medication to induce an
abortion would fall within the proscription of PUCPA. Fur-
ther, the court found that her testimony that she would seek
an abortion if she became pregnant did not suffice to give her
standing.
McCormack concedes that her challenge to PUCPA is “pre-
enforcement.” McCormack has not been prosecuted or threat-
ened with prosecution under PUCPA. But, McCormack
argues that because no physician located in southeast Idaho
offers pre-viability abortions to women beyond the 19th week
of their pregnancy, no physician will have standing to chal-
lenge the constitutionality of PUCPA. Nevertheless, McCor-
mack relies on the fact that she was criminally charged under
Chapter 6 (§ 18-606) as proof of potential future criminal
charges under PUCPA (Chapter 5). She also argues that based
on her prior status as a pregnant woman, she should have
standing to challenge this statute.
1. Standing based on the possibility of future criminal
charges under PUCPA.
In contrast to the previous issue regarding Chapter 6
(including § 18-606, § 18-608(1) and § 18-608(2)), no
charges were brought against McCormack under Chapter 5
(PUCPA). Hiedeman brought charges only under § 18-606,
alleging that McCormack purposely terminated her own preg-
nancy in a manner not authorized by statute. Although
McCormack was prosecuted for submitting to a pre-viability
abortion, PUCPA was not even enacted at the time the crimi-
nal complaint was filed.
MCCORMACK v. HIEDEMAN 10947
McCormack argues, however, that she remains threatened
with prosecution under PUCPA based on the prior Chapter 6
criminal case being dismissed without prejudice and Hiede-
man’s declaration that he may re-commence a prosecution.
She argues:
it is irrelevant which statute or subsection of a statute
Hiedeman may choose to use to prosecute McCor-
mack . . . for terminating a pregnancy in Bannock
County. McCormack is threatened by a repetition of
her alleged injury by the threat Hiedeman will prose-
cute her or her provider again under any applicable
statute for terminating pregnancy in Bannock
County.
She asserts that to determine issues of standing, the court
must look to the facts as they existed at the time the complaint
was filed. American Civil Liberties Union of Nevada v.
Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006); Clark v. City of
Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001) (“Standing is
determined by the facts as they exist at the time the complaint
is filed”). Here, when McCormack filed her civil complaint
on September 16, 2011, PUCPA was enacted. Idaho Code
§ 18-501 (enacted April 13, 2011). Thus, she asserts that the
court can consider the effect that PUCPA has on McCor-
mack’s prospective chance of being criminally charged.
[14] McCormack cannot satisfy Thomas‘ three-part test,
set forth above, for determining whether a plaintiff faces a
“genuine threat of prosecution” under PUCPA. See 220 F.3d
at 1139. First, McCormack does not have a “concrete plan” to
violate PUCPA. PUCPA explicitly excludes women from
criminal liability. Idaho Code § 18-507 (“No penalty shall be
assessed against the woman upon whom the abortion is per-
formed or attempted to be performed.”). Therefore, there is no
“concrete” way for McCormack to violate the law as an indi-
vidual pregnant woman because PUCPA specifically excludes
women from criminal liability. Second, the “prosecuting
10948 MCCORMACK v. HIEDEMAN
authorities have [not] communicated a specific warning or
threat to initiate proceedings” under PUCPA. Thomas, 220
F.3d at 1139. Hiedeman’s declaration specifically states: “My
office has not determined as of this date whether new or addi-
tional evidence is or may become available to warrant re-
commencing a prosecution under § 18-606.” Thus, the only
threat of future prosecution is under Chapter 6, not Chapter 5
(PUCPA). Finally, the third Thomas factor does not tilt in her
favor because there is no history of past prosecution or
enforcement under PUCPA. McCormack was prosecuted
under Chapter 6, not Chapter 5 (PUCPA).
In short, McCormack does not face a genuine threat of
prosecution under PUCPA sufficient to confer standing to
challenge the statute.
2. Standing based on her testimony that she would seek
an abortion if she became pregnant.
McCormack’s testimony that she would seek an abortion if
she became pregnant does not suffice to give her standing. It
is undisputed that McCormack was not pregnant when she
filed this lawsuit. As a result, she does not have standing
under any theory articulated in Roe.
In contrast with Jane Roe and akin to McCormack’s posi-
tion, the Roe Court found that John and Mary Doe, a married
couple who filed a companion complaint along with Roe’s,
did not have standing. Roe, 410 U.S. at 127-129. The Does
alleged that they were childless, that Mrs. Doe was not preg-
nant, and that they had been advised that Mrs. Doe should
avoid pregnancy for medical and “other highly personal rea-
sons.” Id. at 127. They alleged that if Mrs. Doe became preg-
nant, they would want to terminate the pregnancy by abortion.
Id. at 128. They also alleged that they were injured because
they were forced to choose between abstaining from normal
sexual relations or putting Mrs. Doe’s health at risk through
a possible pregnancy. Id. The Court said, “[t]heir claim is that
MCCORMACK v. HIEDEMAN 10949
sometime in the future Mrs. Doe might become pregnant
because of possible failure of contraceptive measures, and at
that time in the future she might want an abortion that might
then be illegal under the Texas statutes.” Id. The Court con-
cluded that the Does did not have standing:
Their alleged injury rests on possible future contra-
ceptive failure, possible future pregnancy, possible
future unpreparedness for parenthood, and possible
future impairment of health. Any one or more of
these several possibilities may not take place and all
may not combine. In the Does’ estimation, these pos-
sibilities might have some real or imagined impact
on their marital happiness. But we are not prepared
to say that the bare allegation of so indirect an injury
is sufficient to present an actual case or controversy.
Id.; see also Abele v. Markle, 452 F.2d 1121, 1124-25 (2d Cir.
1971) (holding that non-pregnant plaintiffs had no standing to
challenge abortion statute solely on basis of childbearing age
because “[a]lthough some of them may in the future become
pregnant and may in such event desire an abortion . . . it is
also possible that they will not become pregnant or that if they
do they will, upon further reflection, decide for other reasons
against an abortion. . . . It is clear that any threat of harm to
them is remote and hypothetical.”).
As with the Does, in McCormack’s case there are too many
“possibilities that may not take place and all may not com-
bine.” Roe, 410 U.S. at 128. Therefore, McCormack does not
have standing to challenge PUCPA based on the fact that she
was pregnant before filing her civil complaint or based on a
possible future pregnancy.
3. Standing based on the alleged chilling effect PUCPA
will have on doctors’ willingness to provide abor-
tions after nineteen weeks in Idaho.
McCormack asserts she is injured by PUCPA because it
will have the effect of ensuring that there are no providers
10950 MCCORMACK v. HIEDEMAN
willing to provide an abortion after 19 weeks of pregnancy in
southeast Idaho. But the record demonstrates that there were
no providers physically located in southeast Idaho willing to
perform any abortions before the law was enacted.
[15] Even if a doctor could bring a challenge to PUCPA on
the basis of potential prosecution, McCormack cannot do so
on behalf of an unnamed provider. Accordingly, the district
court did not err in determining that McCormack lacked
standing to challenge PUCPA.14
CONCLUSION
For the reasons discussed above, we affirm in part and
reverse in part the district court’s grant of a preliminary
injunction. Specifically, we AFFIRM the district court’s
determination that McCormack will likely succeed with her
facial constitutional challenges to Idaho Code §§ 18-606 and
18-608(1) and; AFFIRM the district court’s conclusion that
McCormack lacked standing to seek pre-enforcement relief
against the enforcement of PUCPA.
We REVERSE the scope of the injunction to the extent that
it grants relief beyond McCormack. We also REVERSE the
district court’s determination that McCormack did not have
standing to enjoin enforcement of Idaho Code § 18-608(2) in
conjunction with § 18-606. Each party shall bear its own costs
on appeal.
AFFIRMED in part, REVERSED in part, and
REMANDED.
14
Our holding does not foreclose other constitutional challenges to
PUCPA, in the event that a party can demonstrate standing.