McCormack v. Hiedeman
| Decision Date | 27 January 2012 |
| Docket Number | Case No. 4:11-cr-00433-BLW |
| Parties | JENNIE LINN MCCORMACK, on behalf of herself and all others similarly situated, and in the interests of the general public, Plaintiff, v. MARK L. HIEDEMAN, Bannock County Prosecuting Attorney, Defendant. |
| Court | U.S. District Court — District of Idaho |
Plaintiff Jennie Linn McCormack seeks certification under Federal Rule of Civil Procedure 23(b) (2). McCormack filed this class action seeking a determination that Title 18, Chapters 5 and 6, Idaho Code violate various provisions of the United States Constitution. Those chapters regulate the performance of abortion in Idaho.
The Court has determined that oral argument will not significantly assist the decisional process. For the reasons expressed below, the Court will deny the motion to certify.
Plaintiff Jennie Linn McCormack, a resident of Bannock County, is unmarried, has three children, and is unemployed. McCormack Aff. ¶¶ 1-2, Dkt. 4. In 2010, she had no income other than child support payments of between $200 and $250 per month. Id. ¶ 3. She testifies in her affidavit that she became pregnant during the fall of 2010 and wanted to obtain an abortion, but she knew that no physicians provided abortions in southeast Idaho. Id. ¶¶ 4-5. McCormack had previously obtained an abortion in Salt Lake City, Utah, but she did not have the money necessary to obtain another abortion there. Id. ¶ 6.
According to a Pocatello Police Department's detail incident report, a police officer, on January 9, 2011, responded to a report from a third party that McCormack "had taken drugs to abort a pregnancy and now had the fetus in a box on her back porch." Incident Report at 5, Ex. A to Hearn Aff., Dkt. 21-1.
After receiving the call, the police questioned McCormack at her home. In response to questioning, McCormack initially stated that she had miscarried two weeks earlier, on December 24, 2010, and she had been approximately four weeks into her pregnancy when she miscarried. Id. at 6. When asked whether the fetus was outside as had been reported, McCormack denied it. But when questioned further, McCormack dropped her head and pointed toward the back door and said, "It is out there." Id. at 6. The officers found the fetus "wrapped in multiple bags and contained in multiple boxes on the exterior back porch area." Id. at 4.
After the police discovered the fetus, McCormack agreed to accompany the officers to the station to answer further questions. Id. at 7. While being questioned at the station, McCormack admitted that she had ingested pills to abort the fetus because McCormack did not have enough money to travel to Salt Lake City to get an abortion. Id. She stated that her sister who lived in Mississippi had ordered them from an internet provider for $200. Id. at 7, 8. McCormack did not know what the pills were. Id. at 7. According to McCormack's statement in the police report, the pills arrived in a white envelope with no return address. Id. at 8. McCormack took one pink pill, waited 48 hours, and took four white pills. Id. at 7. A few hours after taking the pills, the fetus was expelled in the bathroom of McCormack's residence. Id. at 5, 7, 8.
McCormack placed the fetus, which was already in a plastic garbage bag, into a box. Id. McCormack stated in the report that she kept the box in her room for a week because "she couldn't believe it and didn't want to let it go." Id. at 7. She then moved the box outside but had no plan on what to do with the fetus. Id. McCormack had not sought medical care during or after the pregnancy. Id. at 6, 7.
An autopsy was performed on the fetus, which appeared to be female, two days after discovery by the police. The fetus's length measured between 12.25 and 12.5 inches; the head measured 8.25 inches; the feet measured 1.25 inches in length; and the weight was 453 grams. Id. at 18. An attending physician estimated gestational age at 19 to 23 weeks "but with difficult certainty." Id. at 19. McCormack stated that she did not know when she conceived as her periods were irregular, but she placed the gestationalage at various points, including four weeks, 12 weeks, 14 weeks, and 25 weeks. Id. at 16, 19, 5 and 8.
For fear of incriminating herself, McCormack has avoided admitting in these proceedings that she induced an abortion with medication purchased over the internet. But it is undisputed that she was charged by Defendant Hiedeman with the felony offense of having an unlawful abortion in violation of Idaho Code § 18-606. The state court orally granted a motion to dismiss the criminal charges against McCormack on August 24, 2011. The state court entered a written decision confirming its oral ruling on September 7, 2011. Hiedeman has not determined whether his office will re-file the criminal charges against McCormack under Idaho Code §18-606(2). Hiedeman Decl. ¶ 3, Dkt. 12-1.
Hiedeman objects to McCormack's motion to certify. He maintains that McCormack has no "standing to maintain any of her challenges except those to § 18-606(2), under which she was charged criminally in state court, § 18-608A, which regulates the sale of abortifacients, and the requirement in § 18-608A, which providesthat "[i]t is unlawful for any person other than a physician to cause or perform an abortion." Def.'s Opp'n at 5, Dkt. 25. Thus, Hiedeman argues, the requested class is overbroad. Second, Hiedeman contends that even assuming that McCormack has standing, "the idiosyncratic quality of her alleged self-abortion and the lack of likelihood, much less any probative showing by Plaintiff, that any other woman seeking an abortion in Bannock County would engage in comparable conduct vitiate the very basis for Rule 23(b)(2) certification." Id. at 6-7.
Before considering the class certification question, the Court must first determine whether McCormack has standing to challenge the identified provisions. Standing requires that McCormack establish (1) she suffered an injury in fact, (2) the injury is fairly traceable to the defendant, and (3) it is likely that the injury will be redressed by a favorable decision. Or, as the Supreme Court has explained: "[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). McCormack bears the burden of establishing these elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
A plaintiff contesting the constitutionality of a criminal statute is not required to "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." Steffel v. Thompson, 415 U.S. 452, 459(1974). Rather, if the plaintiff alleges an intention to engage in acourse of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, she "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." Doe v. Bolton, 410 U.S. 179, 188 (1973). But "persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs." Younger v. Harris, 401 U.S. 37, 42 (1971).
McCormack is not currently pregnant. But she argues that she has standing to attack the abortion statutes at issue based on hypothetical abortions in the future. The Court agrees with Hiedeman that McCormack's attempt to establish standing on this basis "is quixotic." Def.'s Resp. at 11, Dkt. 25.
It appears the overwhelming majority of courts to consider this issue - and most importantly the Supreme Court - have viewed nonpregnancy as fatal to standing. See, e.g., Roe v. Wade, 410 U.S. 113, 128 (1973). See also McInnes-Misenor v. Maine Medical Center, 211 F.Supp.2d 256, 260 (D.Me. 2002) (collecting cases). Indeed, in McInness-Misenor, the court found that the plaintiffs - a couple actively seeking to become pregnant with their second child - did not have standing to bring a claim seeking to compel a birthing center to render its facilitates wheelchair-accessible in anticipation of the couples' future pregnancy. 211 F.Supp.2d at 260. The court explained: Id. at 260.
Likewise, in this case, the projected harm McCormack hypothesizes will occur based on a future prosecution for a future abortion of a fetus not yet conceived is not "certainly impending" to establish "injury-in-fact" for standing purposes. McCormack's prosecution under the statute for a future abortion presupposes that (1) McCormack will get pregnant, (2) the pregnancy will be unwanted, (3) McCormack will seek an abortion in Southeast Idaho; and (4) McCormack will be prosecuted for obtaining that abortion. The alleged injury rests on...
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