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McCormack v. Hiedeman

United States District Court, D. Idaho

March 6, 2013

Jennie Linn McCORMACK, on behalf of herself and all others similarly situated, and in the interests of the general public, Plaintiff,
Mark L. HIEDEMAN, Bannock County Prosecuting Attorney, Defendant. and Richard Hearn, M.D., on behalf of himself and his patients seeking medical abortions for health reasons prior to fetal viability, Plaintiff-in-Intervention,

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18- 605, 18-606, 18-608(1, 2). John B. Ingelstrom, Jonathan M. Volyn, Racine OlsonNye Budge and Bailey, Pocatello, ID, for Plaintiff.

Jack Van Valkenburgh, Van Valkenburgh Law, PLLC, Boise, ID, for Plaintiff-in-Intervention.

Richard A. Hearn, Racine OlsonNye Budge and Bailey, Pocatello, ID, for Plaintiff/Plaintiff-in-Intervention.

Clay R. Smith, Office of Attorney General, Boise, ID, for Defendant.


B. LYNN WINMILL, Chief Judge.


On May 18, 2011, Mark Hiedeman,[1] the Bannock County, Idaho prosecuting attorney, filed a felony criminal complaint 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 section 18-606, Idaho Code, which specifically targets pregnant women. I.C. § 18-606(2). On September 7, 2011, an Idaho state district court dismissed the criminal complaint without prejudice.

On September 16, 2011, McCormack filed this class action against Hiedeman, seeking a determination that section 18-606, as well as other provisions of Title 18, Chapters 5 and 6 of the Idaho Code, which also regulate abortion, violate various provisions of the United States Constitution. McCormack also filed a motion to enjoin enforcement of these various statutes. On November 14, 2011, 2011 WL 9150843, this Court issued a preliminary injunction that enjoined Hiedeman from enforcing sections 18-606 and 18-608(1), but found that McCormack did not have standing to challenge either section 18-608(2), or any provision of Chapter 5, the Pain-Capable Unborn Child Protection Act (" PUCPA" ).

Both McCormack and Hiedeman appealed the decision. The Ninth Circuit affirmed in part and reversed in part this Court's grant of a preliminary injunction, concluding that (1) McCormack will likely succeed with her facial constitutional challenge to sections 18-606 and 18-608(1); (2) McCormack has standing to challenge section 18-608(2) in conjunction with section 18-606; (3) this Court's injunction was overbroad to the extent it granted relief beyond McCormack, and (4) McCormack does not have standing to challenge enforcement of the PUCPA.

Hiedeman now moves for partial summary judgment (Dkt. 58), arguing McCormack's claims are moot because he has decided that he will not re-file the charges against McCormack. McCormack and Plaintiff-in-Intervention Dr. Richard Hearn also filed a joint motion for partial summary judgment on their claims for prospective relief (Dkt. 71), seeking: (a) a declaration that

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section 18-606, Idaho Code, in conjunction with sections 18-608(1) and 18-608(2), Idaho Code, is facially unconstitutional; (b) a declaration that section 18-605, Idaho Code, in conjunction with sections 18-608(1) and 18-608(2), Idaho Code, is facially unconstitutional; (c) a declaration that section 18-505, Idaho Code, in conjunction with sections 18-507 and 18-508, Idaho Code, is facially unconstitutional; and (d) a permanent injunction against Hiedeman from enforcing any of these statutes.

For the reasons set forth below, the Court will deny Hiedeman's motion for partial summary judgment. McCormack's claims are not moot. And the Court grants Plaintiff's partial motion for summary judgment for the reasons set forth below.


Summary judgment is appropriate where a party can show that, as to any claim or defense, " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). One of the principal purposes of the summary judgment " is to isolate and dispose of factually unsupported claims...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). It is " not a disfavored procedural shortcut," but is instead the " principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327, 106 S.Ct. 2548. " [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). There must be a genuine dispute as to any material fact— a fact " that may affect the outcome of the case." Id. at 248, 106 S.Ct. 2505.

The evidence must be viewed in the light most favorable to the non-moving party, and the Court must not make credibility findings. Id. at 255, 106 S.Ct. 2505. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir.1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir.1988).

The moving party bears the initial burden of demonstrating the absence of a genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001)(en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).

This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. Devereaux, 263 F.3d at 1076. The non-moving party must go beyond the pleadings and show " by her [ ] affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine dispute of material fact exists. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

However, the Court is " not required to comb through the record to find some reason to deny a motion for summary judgment." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir.2001) (quotation omitted). Instead, the " party opposing summary judgment must direct [the Court's] attention to specific triable facts."

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Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir.2003).


1. The Statutes

A. Chapter 6

Section 18-606(2), Idaho Code, focuses on women seeking abortions. Section 18-606(2) makes it a felony, except as permitted by the remainder of Title 18, 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." Section 18-608 entitled " Certain abortions permitted— Conditions and guidelines" limits the applicability of section 18-606.

For example, section 18-608(1) 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 a clinic [that is] properly staffed and equipped for the performance of such procedures," if the physician makes arrangements with a nearby hospital that could provide prompt care if a medical emergency were to arise. I.C. § 18-608(1).

Additionally, under section 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." I.C. § 18-608(2).

Finally, section 18-605(3) applies to health care providers, making it a felony for any licensed or certified health care provider to knowingly violate any provision of Chapter 6. I.C. § 18-605(3).

B. Chapter 5

Title 18, Chapter 5 of the Idaho Code, or the PUCPA, categorically bans non-therapeutic abortions at and after twenty weeks. I.C. § 18-505. " 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 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 pain-capable unborn child protection act or the father of the unborn child...." I.C. § 18-508(1). In addition, the PUCPA permits certain persons, including a prosecuting attorney, to file an action for injunctive relief against an abortion provider who violates section 18-505. I.C. § 18-508(2).

2. Jennie Linn McCormack

McCormack is a resident of Bannock County, Idaho. In 2010, she was unmarried, had three children (ages 2, 11, and 18), and was unemployed. She also had no source of income other than child support payments, which were between $200 and $250 per month.

In the fall of 2010, McCormack discovered she was pregnant and sought an abortion. She knew that abortions are 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.

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 learned further that medications that induce abortions have been

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approved for use in the U.S. and could be purchased over the internet.

According to a Pocatello Police Department's detail incident report, a police officer, on January 9, 2011, responded to a call 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 Counsel Aff. III, Dkt. 21-1. After receiving that call, police officers questioned McCormack at her home. Id. While being questioned, McCormack voluntarily led the police officers to the remains of a fetus. Id. at 3, 10.

After the officers discovered the fetus, McCormack agreed to accompany them to the police station to answer additional questions. Id. at 7. According to the Incident Report, McCormack had ingested five pills to abort the fetus because she did not have enough money to travel to Salt Lake City to get an abortion. Id. McCormack stated that her sister, who lived in Mississippi, had ordered the pills from an internet provider for $200, and they arrived at McCormack's apartment approximately one week later. Id. at 7, 8.

An autopsy was performed on the fetus, which appeared to be female, two days after discovery by the police. 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.

On May 18, 2011, Hiedeman, in his capacity as Bannock County prosecuting attorney, filed a criminal complaint in state court in Bannock County, charging McCormack with the felony of " the public offense of Unlawful Abortion, Idaho Code § 18-606." The criminal complaint alleged that on December 24, 2010, McCormack induced her own abortion, thereby purposefully terminating her pregnancy:

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.

A state magistrate judge dismissed the criminal complaint without prejudice on September 7, 2011.

At the time McCormack sought the preliminary injunction, Hiedeman had not determined whether to re-file the criminal complaint. He now says that he does not intend to prosecute McCormack for an unlawful abortion because " it is not in the interests of justice or an efficient use ...

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