McCormack v. Hiedeman

• Decision Date: 11 September 2012
• Docket Number: Nos. 11–36010,11–36015.,s. 11–36010
• Parties: Jennie Linn McCORMACK, Plaintiff–Appellee, v. Mark L. HIEDEMAN, Bannock County Prosecuting Attorney, Defendant–Appellant. Jennie Linn McCormack, Plaintiff–Appellant, v. Mark L. Hiedeman, Bannock County Prosecuting Attorney, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

694 F.3d 1004

2012 Daily Journal D.A.R. 12,824

Jennie Linn McCORMACK, Plaintiff–Appellee,

v.Mark L. HIEDEMAN, Bannock County Prosecuting Attorney, Defendant–Appellant.

Jennie Linn McCormack, Plaintiff–Appellant,

v.Mark L. Hiedeman, Bannock County Prosecuting Attorney, Defendant–Appellee.

Nos. 11–36010, 11–36015.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 9, 2012.

Filed Sept. 11, 2012.

Clay R. Smith, Deputy Attorney General, Boise, ID, for the defendant-appellant and cross-appellee.

Richard A. Hearn, Racine, Olson, Nye, Budge & Bailey, Chartered, Pocatello, ID, for the plaintiff-appellee and cross-appellant.

Kathleen M. O'Sullivan, Perkins Coie, Seattle, WA, for amici curiae Legal Voice, Center for Reproductive Rights, and National Advocates for Pregnant Women.

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

Before: BETTY B. FLETCHER and HARRY PREGERSON, Circuit Judges, and DONALD E. WALTER, Senior District Judge.^*

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 district 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. District 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, McCormack argues 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).

For the reasons set forth below, we affirm in part and reverse in part the district court's grant of a preliminary injunction.

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 providers 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 performed 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 inducing 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 medications 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, McCormack's attorney reiterated that the medications were prescribed 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 soliciting of another, for herself, the production of an abortion; 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 determined 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 southeast 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 Idaho Code § 18–505. We summarize the substance of each statute.

1. Chapter Six: Idaho Code § 18–606

Idaho Code § 18–606(2) makes it a felony, except as permitted by the remainder of Title 8, Chapter 6 of the Idaho Code, for “[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 pregnancy otherwise than by a live birth....” Anyone deemed guilty of violating § 18–606 “shall be fined not to exceed five thousand 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 § 18–608

Idaho 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 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 the abortion must be “performed in a hospital and [must be], in the judgment of the attending physician, in the best medical interest of such pregnant woman.”

3. Chapter Five, the Pain–Capable Unborn Child Protection 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 perform 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 protection 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 capacity 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 stipulated to the entry of the temporary restraining order, and the district court approved the stipulation on October 7, 2011, consistent with the memorandum decision entered on September 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 reasons and on those grounds set forth in the Memorandum Decision 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 contends that the district court should have enjoined enforcement of Idaho Code § 18–606 in...