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

January 27, 2012


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



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 gestational age 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.


With this motion, McCormack seeks ...

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