McCormack v. Herzog

An individual may have standing to challenge an abortion statute if the individual could be prosecuted in the future based on a past violation of the statute, or when the individual intends to perform abortions that would violate the statute.

Jennie McCormack and Dr. Richard Hearn challenged the constitutionality of §§ 18-505, 18-606, and 18-608 of Idaho Code Title 18, Chapter 5, the Pain-Capable Unborn Child Protection Act (“PUCPA”), and Chapter 6. McCormack was charged for having an abortion not authorized under the statute. The district court granted McCormack’s motion for a preliminary injunction against prosecution. However, the district court held that McCormack did not have standing to challenge §18-608(2) or § 18-505. McCormack’s attorney, Dr. Hearn, also a licensed physician, was allowed to intervene. The Ninth Circuit affirmed the district court’s preliminary injunction, limiting its application to only McCormack, and held that she lacked standing to seek pre-enforcement relief against the enforcement of PUCPA on the basis of future pregnancies. The district court later declared the statute criminalizing abortion unconstitutional, permanently enjoining the prosecuting attorney from prosecuting McCormack or Dr. Hearn under the statute. The prosecuting attorney appealed, and the panel held that McCormack’s challenge to § 18-606 was not moot because her claim fell under three exceptions to the mootness doctrine: (1) voluntary cessation, (2) collateral legal consequences, and (3) capable of repetition, yet evading review. The panel found that McCormack had standing based on a lingering risk of prosecution under § 18-606. While standing to challenge abortion statutes cannot be based on the possibility of future pregnancies, McCormack had standing based on the ongoing risk of prosecution for her past abortion. The panel also held that Dr. Hearn had standing since a physician’s statement of intent is sufficient to establish standing when the physician is at risk of criminal prosecution under the relevant statute. The panel concluded that the challenged statutes were unconstitutional due to an undue burden of a woman’s right to choose, and vagueness. AFFIRMED.