McCormack v. Herzog, No. 13-35401 (9th Cir. 2015)
Annotate this CaseJennie McCormack filed suit alleging that Idaho Code Title 18, Chapters 5—the Pain-Capable Unborn Child Protection Act (“PUCPA”)—and 6, which regulate the performance of abortions, violate various provisions of the United States Constitution. Dr.Richard Hearn, McCormack's attorney and third-party intervenor, who is also an Idaho licensed physician who intends to provide his patients with pre-viability medical abortions, challenged the constitutionality of §§ 18-505 and 18-608, which fall within Chapters 5 and 6 of Idaho Code Title 18. The court concluded that McCormack’s challenge to § 18-606 is not moot; McCormack has standing based on a lingering risk of prosecution under § 18-606; Dr. Hearn has standing to challenge §§ 18-505 and 18-608; section 18-505 is facially unconstitutional because it categorically bans some abortions before viability; section 18-608(2) is facially unconstitutional because it places an undue burden on a woman’s ability to obtain an abortion by requiring hospitalizations for all second-trimester abortions; and section 18-608(1) in conjunction with § 18-605 is unconstitutionally vague. The court affirmed the judgment of the district court.
Court Description: Civil Rights. The panel affirmed the district court’s summary judgment for plaintiffs in an action brought pursuant to 42 U.S.C. § 1983 challenging the Pain-Capable Unborn Child Protection Act, which regulates the performance of abortions in Idaho. Plaintiff, Jennie McCormack, was criminally charged with violating Idaho Code § 18-606, for knowingly submitting to an abortion not authorized under the statute, or purposely self-terminating a pregnancy. After the criminal complaint was dismissed without prejudice by a state court, McCormack brought a class action in federal court against the prosecuting attorney, who subsequently offered McCormack transactional immunity from prosecution for the alleged abortion, which she declined. McCormack’s attorney, Dr. Hearn, who is also a licensed physician, intervened in the action on his own behalf and on the behalf of his patients. The panel held that McCormack’s challenge to §18-606 was not moot because her claims fell under three exceptions to the mootness doctrine: (a) “voluntary cessation,” (b) “collateral legal consequences,” and (c) “capable of repetition, yet evading review.” The panel further held that McCormack had standing based on the lingering risk of prosecution under § 18-606. MCCORMACK V. HERZOG 3 The panel held that Dr. Hearn had standing based on his intention to provide medical abortions through the second trimester outside a clinical or hospital setting and based on his possible prosecution under § 18-505 and § 18-608. The panel held that Section 18-505, which prohibits abortions of fetuses of twenty or more weeks postfertilization, was facially unconstitutional because it categorically bans some abortions before viability. The panel further held that Section 18-608(2), which requires that all second-trimester abortions occur in a hospital, was facially unconstitutional because it places an undue burden on a woman’s ability to obtain an abortion by requiring hospitalizations for all second-trimester abortions. Finally, the panel held that Section 18-608(1) (requiring, among other things, that abortions during the first trimester take place in a medical office that is properly staffed and that the responsible physician make satisfactory arrangements with an acute care hospital in care of complications or emergencies) in conjunction with § 18-605 was unconstitutionally vague.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.