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Jennie Linn Mccormack, On Behalf of Herself and All Others Similarly v. Mark L. Heideman

September 23, 2011


The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court



Plaintiff Jennie Linn McCormack filed this action on August 24, 2011, challenging the constitutionality of certain provisions in Idaho Code Title 18, Chapters 5 and 6, which regulate the performance of abortions in Idaho. Simultaneous with the filing of the Complaint, Plaintiff moved for a temporary restraining order, seeking a TRO restraining Bannock County Prosecutor Mark L. Heideman from criminally charging any woman for violating Idaho Code §18-606 in Bannock County, Idaho. On September 7, 2011, Plaintiff amended her motion to include a request for a TRO restraining Heideman from criminally prosecuting or bringing any civil action for injunctive relief against any person for allegedly providing an abortion in violation of the provisions of Idaho Code § 18-505.

On September 9, 2011, the Court heard oral argument and took the motion under advisement. For the reasons expressed below, the Court will grant the motion in part and deny the motion in part. The Court will enjoin the enforcement of Idaho Code §§ 18-606 and § 18-608(1) only.


1.The Statutes

A.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 live birth."

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. It allows a woman to 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 performance of such procedures and respecting which the responsible 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." Id. at § 18-608(1).

B.Idaho Code § 18-505

Idaho Code § 18-505, or the Pain-Capable Unborn Child Protection Act, 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." I.C. § 18-507. 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.

2.The Plaintiff

Plaintiff, 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. Plaintiff 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. Plaintiff discovered that abortions can be performed using medications rather than surgery, and the cost for a medical abortion is significantly less than the cost of a surgical abortion. ¶ 7. Plaintiff learned that such medications for inducing abortions, which are approved for use in the United States, can be purchased from a physician over the internet. Id. ¶ 8.

Plaintiff does not admit that she induced an abortion with prescribed medication purchased over the internet, but it is undisputed that she was charged with a felony for having an unlawful abortion in violation of Idaho Code § 18-606 by Defendant Heideman. The state court orally granted a motion to dismiss the criminal charges against Plaintiff on August 24, 2011. The state court entered a written decision confirming its oral ruling on September 7, 2011.

Heideman has not determined whether his office will re-file the criminal charges against Plaintiff under Idaho Code §18-606(2). Heideman Decl. ¶ 3, Dkt. 12-1. Plaintiff now seeks a TRO restraining Heideman from enforcing Idaho Code §§ 18-606, 18-608, and 18-505.


Before addressing the merits of the action, it is necessary to resolve the threshold questions raised by Heideman's arguments: (1) whether the Court must abstain from deciding the constitutionality of § 18-606 under Younger v. Harris, 401 U.S. 37 (1971); and (2) if Younger abstention is not appropriate, whether Plaintiff ...

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