FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JENNIE LINN MCCORMACK,

Plaintiff-Appellee,

RICHARD HEARN, M.D., on his own

behalf and on behalf of his patients,

Intervenor-Plaintiff-Appellee,

v.

STEPHEN F. HERZOG, Bannock

County Prosecuting Attorney,

Defendant-Appellant.

No. 13-35401

D.C. No.

4:11-cv-00433-

BLW

OPINION

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted

July 18, 2014—Pasadena, California

Filed May 29, 2015

Before: Harry Pregerson and Kim McLane Wardlaw,

Circuit Judges, and Donald E. Walter, Senior District

Judge.*

Opinion by Judge Pregerson

* The Honorable Donald E. Walter, Senior District Judge for the U.S.

District Court for the Western District ofLouisiana, sitting by designation.
2 MCCORMACK V. HERZOG

SUMMARY**

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. 

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
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 twentyor 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. 

COUNSEL

Clay R. Smith (argued), Deputy Attorney General, and

Steven L. Olsen, Chief of Civil Litigation, AttorneyGeneral’s

Office, Boise, Idaho for Defendant-Appellant.

Richard A. Hearn (argued), Racine, Olson, Nye, Budge &

Bailey, Chartered, Pocatello, Idaho, for Plaintiff-Appellee.

Jack Van Valkenburgh, Boise, Idaho, for Intervenor-PlaintiffAppellee.
4 MCCORMACK V. HERZOG

Kathleen M. O’Sullivan and Katherine G. Galipeau, Perkins

Coie LLP, Seattle, Washington, for Amici Curiae Legal

Voice, Center for Reproductive Rights, National Advocates

for Pregnant Women, and Planned Parenthood of the Great

Northwest.

Lawrence J. Joseph, Washington, D.C., for Amicus Curiae

Eagle Forum Education and Legal Defense Fund.

OPINION

PREGERSON, Circuit Judge:

In this 42 U.S.C. § 1983 action, Stephen Herzog, the

Prosecuting Attorney of Bannock County, Idaho, appeals the

district court’s order denying his motion for partial summary

judgment and granting the joint motion for partial summary

judgment in favor of appellees Jennie McCormack

(“McCormack”) and Dr. Richard Hearn (“Dr. Hearn”).

Before the district court, Jennie McCormack claimed 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. McCormack’s attorney is Dr.

Hearn, who is also an Idaho licensed physician who intends

to provide his patients with pre-viability medical abortions. 

Dr. Hearn, as a third party-intervenor, also challenged the

constitutionality of §§ 18-505 and 18-608, which fall within

Chapters 5 and 6 of Idaho Code Title 18.

We have jurisdiction pursuant to 28 U.S.C. § 1291. For

the reasons set forth below, we affirm.
MCCORMACK V. HERZOG 5

BACKGROUND

This case had its genesis in an Idaho state criminal

prosecution when, on May 18, 2011, the then Prosecuting

Attorney for Bannock County, Idaho, Mark Hiedeman,1filed

a criminal complaint against Jennie McCormack. The

complaint charged McCormack with violating Idaho Code

§ 18-606,

2

for knowingly submitting to an abortion not

authorized under the statute, or purposely self-terminating a

pregnancy. McCormack admitted to the police that she selfinduced an abortion after ingesting a pack of five pills.3 A

physician examined the fetus and estimated its gestational age

to have been between nineteen and twenty-three weeks, “but

with difficult certainty.”

Then on September 7, 2011, an Idaho state judge

dismissed the criminal complaint without prejudice for lack

of probable cause.

1 Stephen Herzog (“Herzog”) succeeded Mark Hiedeman as Prosecuting

Attorney on January 14, 2013, and was automatically substituted as the

defendant pursuant to Fed. R. Civ. P. 25(d).

 

2 Section 18-606 provides that a woman who submits to an abortion in

a manner not authorized by statute, or acts as an accomplice to such an

abortion, will be guilty of a felony, fined, and/or imprisoned for not less

than one year, and not more than five.

3 McCormack knew that abortions are not available in southeast Idaho,

where she lived. McCormack was aware that abortions are available in

Salt Lake City, Utah, and cost between $400 and $2,000, depending on the

stage of the pregnancy. McCormack learned that medications could be

used to perform abortions and that the medications were significantly less

expensive than surgical abortions. McCormack’s sister allegedly found

unspecified abortion pills online, paid $200 for them, and had them

shipped to McCormack in Idaho.
6 MCCORMACK V. HERZOG

On September 16, 2011, McCormack filed a class action

in the United States District Court for the District of Idaho

against the then Prosecuting Attorney 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[s], violate various provisions of the United

States Constitution.”

On November 14, 2011, Chief United States District

Judge for the District of Idaho, B. Lynn Winmill, granted

McCormack’s motion for preliminary injunctive relief and

enjoined then ProsecutingAttorneyHiedeman fromenforcing

§ 18-606 (criminalizing submitting to an abortion), as

interpreted together with § 18-608(1).4 The district court,

however, held that McCormack did not have standing to

challenge § 18-608(2)5 or § 18-505.6

On August 22, 2012, Prosecuting Attorney Hiedeman

determined that he would not re-file a criminal complaint

against McCormack for allegedly violating § 18-606 because

he felt that it was unlikely that his office would develop

additional evidence. About two months later, the Prosecuting

Attorney offered McCormack transactional immunity from

4 Section 18-608(1) requires a physician to perform all first trimester

abortions in a “properly staffed and equipped” hospital, medical office, or

clinic. The physician must also make “satisfactory arrangements with one

or more acute care hospitals within reasonable proximity,” in case of

complications or emergencies related to the abortion.

5 Section 18-608(2) requires all second trimester abortions to take place

in a hospital.

6 Section 18-505 categorically bans abortions of fetuses of twenty or

more weeks postfertilization except in particular circumstances.
MCCORMACK V. HERZOG 7

prosecution for the alleged December 2010 abortion. 

McCormack declined to sign the agreement.

On February23, 2012, McCormack’s attorney, Dr. Hearn,

moved to intervene “on his own behalf and on the behalf of

his patients.” Dr. Hearn is a licensed physician as well as an

attorney in Idaho, and has stated his intent to provide medical

abortions by “prescrib[ing] FDA approved medications to

women in Bannock County, Idaho such as McCormack who

. . . seek to medically (non-surgically) terminate their

pregnancies prior to fetal viability in violation of the

restrictions contained in Idaho Code Title 18, Chapters 5 and

6.” Medical abortions induced by pills are distinct from

surgical or therapeutic abortions which usually take place in

a medical clinic or a hospital. Since 1997, Dr. Hearn has

continuously registered with the Federal Drug Enforcement

Agency and the Idaho State Board of Pharmacy, which allows

him to legally prescribe medication in Bannock County. Dr.

Hearn has not provided medical abortions in the past, does

not have a medical office in which to treat patients, and has

practiced as a full-time attorney since 1997.

The district court granted Dr. Hearn’s motion to

intervene. Dr. Hearn filed an amended complaint-inintervention that similarly challenged the constitutionality of

certain provisions of Idaho Code Title 18, Chapters 5 and 6. 

Pursuant to 42 U.S.C. § 1983, Dr. Hearn sought to enjoin the

Prosecuting Attorney from criminally prosecuting or

threatening to prosecute any woman who seeks an abortion or

any health provider for violating Idaho Code Title 18,

Chapters 5 and 6. Dr. Hearn also sought a declaratory

judgment striking down the relevant Idaho statutes’ criminal

sanctions as unconstitutional facially and as applied to
8 MCCORMACK V. HERZOG

women seeking an abortion in Bannock County, Idaho, or any

health provider who provides assistance to such women.

On September 11, 2012, we affirmed the district court’s

grant of a preliminary injunction that enjoined the

Prosecuting Attorney from prosecuting McCormack under

§§ 18-606 and 18-608(1), and expanded the injunction to

include § 18-608(2) because McCormack faced a “genuine

threat of prosecution under th[is] subsection of the statute.” 

McCormack v. Hiedeman, 694 F.3d 1004, 1020–21 (9th Cir.

2012) (McCormack I). We limited the preliminary

injunction, however, to affect only McCormack (as opposed

to all women affected by § 18-606), id. at 1019–20, and

further held that McCormack lacked standing to seek

pre-enforcement relief against the enforcement of PUCPA on

the basis of future pregnancies, id. at 1022–25.

On October 16, 2012, before the district court

McCormack and Dr. Hearn jointly moved for partial

summaryjudgment to declare three Idaho statutes—§ 18-606,

in conjunction with § 18-608(1) or (2); § 18-605,7in

conjunction with § 18-608(1) or (2); and § 18-505, in

conjunction with § 18-507 or § 18-508—unconstitutional, and

to permanently enjoin the Prosecuting Attorney from

enforcing the statutes.

On March 6, 2013, the district court granted McCormack

and Dr. Hearn’s joint motion for partial summary judgment

7 Section 18-605 establishes civil and criminal penalties for persons who

perform abortions other than as permitted by the remainder of Title 18,

Chapter 6 of the Idaho Code. In particular, § 18-605(3) states that the

licensed or certified health care provider must “knowingly” violate the

statute to be guilty of a felony.
MCCORMACK V. HERZOG 9

and denied Prosecuting Attorney Herzog’s cross-motion for

partial summary judgment. On March 20, 2013, McCormack

and Dr. Hearn moved to dismiss all remaining claims against

Herzog and to enter a final judgment. The district court

granted the motion and entered final judgment on May 2,

2013, declaring the challenged statutes unconstitutional, and

enjoining Herzog from prosecutingMcCormack or Dr. Hearn

under the challenged statutes.

Herzog timely appeals the district court’s final judgment.

DISCUSSION

A. This court has jurisdiction.

1. Standard of Review

“Mootness is a question of law reviewed de novo.” 

Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565 F.3d

545, 559 (9th Cir. 2009) (quoting Barter Fair v. Jackson

County, 372 F.3d 1128, 1133 (9th Cir. 2004)). “A case

becomes moot whenever it loses its character as a present,

live controversy . . . . The question is not whether the precise

relief sought at the time [ the case] was filed is still available. 

The question is whether there can be any effective relief.” Id.

(quoting Earth Island Inst. v. United States Forest Serv.,

442 F.3d 1147, 1157 (9th Cir. 2006)).

Questions of standing are also reviewed de novo, but

underlying factual findings are reviewed for clear error. 

Preminger v. Peake, 552 F.3d 757, 762 n.3 (9th Cir. 2008).
10 MCCORMACK V. HERZOG

2. McCormack’s challenge to § 18-606 is not moot.

Herzog asserts that McCormack’s challenge to § 18-606

is moot because the Prosecuting Attorney granted

McCormack transactional immunity for the alleged 2010

abortion.

“A case might become moot if subsequent events make it

absolutely clear that the allegedly wrongful behavior could

not reasonably be expected to recur. The heavy burden of

persuading the court that the challenged conduct cannot

reasonably be expected to start up again lies with the party

asserting mootness.” Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (internal

quotation marks and citation omitted). Herzog, therefore,

must demonstrate that his office will never again prosecute

McCormack under § 18-606, or that the court is no longer

capable of “affect[ing] the rights of litigants in the case

before [it].” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477

(1990) (citing North Carolina v. Rice, 404 U.S. 244, 246

(1971)).

Herzog’s office offered McCormack transactional

immunity from prosecution for her alleged 2010 abortion,

which McCormack declined to accept.

8 The district court

questioned the validity of the offer of transactional immunity

because the timing of the offer suggests an attempt to “moot

McCormack’s claims and thereby avoid this litigation—and

its challenge to the constitutionality of sections 18-606 and -

8 Like the district court, we assume, but do not decide, that the

Prosecuting Attorney’s offer to not prosecute McCormack is a

transactional immunity agreement.
MCCORMACK V. HERZOG 11

608.” The district court further determined that other factors

also suggested a live controversy:

(1) The specific relief McCormack seeks—

declaratory relief that § 18-606,

interpreted with §§ 18-608(1) and 18-

608(2), is facially unconstitutional—is

still available.

(2) McCormack continues to assert that the

provisions are unconstitutional.

(3) Prosecuting Attorney Herzog continues to

assert that the provisions are not

unconstitutional.

Moreover, the district court determined that “[t]here is a

significant public interest in settling the legality of these

provisions, and the existence of this interest ‘militates against

a mootness conclusion.’” (citing Olagues v. Russoniello,

770 F.2d 791, 794–95 (9th Cir. 1985)).

McCormack argues that her claims are not moot because

they fall under three exceptions to the mootness doctrine:

(a) “voluntarycessation,” (b) “collateral legal consequences,”

and (c) “capable of repetition, yet evading review.”

(a) McCormack is correct that this case falls within the

“voluntary cessation” exception. Herzog acknowledges that

under the “voluntary cessation” exception, it is well-settled

that “a defendant claiming that its voluntary compliance

moots a case bears the formidable burden of showing that it

is absolutely clear the allegedly wrongful behavior could not

reasonably be expected to recur.” Friends of the Earth,
12 MCCORMACK V. HERZOG

528 U.S. at 190. Yet Herzog argues that the court should

presume that the government is acting in good faith, that the

Bannock County Prosecuting Attorney office’s decision

against re-filing criminal charges was made in “the interests

of justice,” and that the office’s sparse history of bringing

criminal charges under § 18-606 demonstrates a lack of

“biased calculus.” A presumption of good faith, however,

cannot overcome a court’s wariness of applying mootness

under “protestations of repentance and reform, especially

when abandonment seems timed to anticipate suit, and there

is probability of resumption.” United States v. W.T. Grant

Co., 345 U.S. 629, 632 n.5 (1953) (quoting United States v.

Oregon State Medical Society, 343 U.S. 326, 333 (1952)).

Furthermore, while a statutory change “is usually enough

to render a case moot,” an executive action that is not

governed by any clear or codified procedures cannot moot a

claim. Bell v. City of Boise, 709 F.3d 890, 898–900 (9th Cir.

2013) (quoting Chem. Prod. And Distrib. Ass’n v. Helliker,

463 F.3d 871, 878 (9th Cir. 2006)). “Even assuming

Defendants have no intention to alter or abandon the [offer of

transactional immunity], the easewith which the [Prosecuting

Attorney] could do so counsels against a finding of

mootness.” Id. at 900. The discretionary decision to not refile criminal charges against McCormack is neither

“entrenched” nor “permanent.” Id.

In addition to the suspicious timing of the offer of

transactional immunity, the district court noted that Herzog

has “never repudiated the statute as unconstitutional, and he

did not cease McCormack’s prosecution because he believed

the prosecution was unlawful.” Instead, Herzog’s office first

determined that it had insufficient evidence to re-file criminal

charges against McCormack. Then, Herzog’s office offered
MCCORMACK V. HERZOG 13

McCormack transactional immunity from prosecution after

our court affirmed the district court’s decision that the Idaho

statutes imposed an undue burden on a woman’s ability to

terminate her pregnancy. The offer of immunity does not by

itself make it “absolutely clear” that the prosecution of

McCormack would never recur. Friends of the Earth,

528 U.S. at 170; see also Olagues, 770 F.2d at 795 (finding

a continuing case or controversy where the government “did

not voluntarily cease the challenged activity because [it] felt

that the investigation was improper[, but, r]ather, [the

government] terminated the investigation solely because it

failed to produce evidence supporting any further

investigative activities.”).

(b) The “collateral legal consequences” exception also

applies. “[A]lthough the primary injury may have

passed”—Herzog has offered transactional immunity to

McCormack—there still exists “‘a substantial controversy,

between parties having adverse legal interests, of sufficient

immediacy and reality to warrant the issuance of a

declaratory judgment.’” E.E.O.C. v. Fed. Exp. Corp.,

558 F.3d 842, 847 (9th Cir. 2008) (quoting In re Burrell,

415 F.3d 994, 999 (9th Cir. 2005)). Herzog continues to

maintain the constitutionality of § 18-606, and declaratory

relief remains available and unaffected.

(c) Finally, as the district court determined, McCormack

would also be eligible for the “capable of repetition, yet

evading review” exception to the mootness doctrine. Like

any other woman challenging a potentially applicable

abortion law, McCormack may become pregnant again, and

her term of pregnancy is of limited duration. Herzog counters

that McCormack lacks standing to challenge § 18-606 on the

basis of future pregnancies. Yet Herzog is conflating the
14 MCCORMACK V. HERZOG

mootness of McCormack’s claim with her standing to bring

the claim. As elaborated below, McCormack may not have

standing to challenge the provision on the basis of future

pregnancies, but that does not moot her current action. See

Friends of the Earth, 528 U.S. at 191 (explaining that a postcomplaint resolution will not moot an action, “despite the fact

that [the plaintiff] would have lacked initial standing had she

filed the complaint after the [resolution]”).

Thus, the district court correctly held that McCormack’s

claim is not moot.

3. McCormack has standing based on a lingering risk of

prosecution under § 18-606.

Prosecuting Attorney Herzog asserts that McCormack

lacks standing to challenge § 18-606 on the basis of future

pregnancies.

Article III standing requires that McCormack establish

(1) that she personally has suffered an “actual or imminent,

not conjectural or hypothetical” injury as a result of the

allegedly illegal conduct; (2) a causal link between her injury

and the challenged action; and (3) that the injury must likely

be “redressed by a favorable decision” of a federal court. 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)

(internal quotation marks and citations omitted). “A plaintiff

who challenges a statute must demonstrate a realistic danger

of sustaining a direct injury as a result of the statute’s

operation or enforcement.” Babbitt v. United Farm Workers

Nat’l Union, 442 U.S. 289, 298 (1979) (citing O’Shea v.

Littleton, 414 U.S. 488, 494 (1974)).
MCCORMACK V. HERZOG 15

In McCormack I, we held that McCormack does not have

standing to challenge PUCPA “based on a possible future

pregnancy” because “in McCormack’s case there are too

many ‘possibilities that may not take place and all may not

combine.’” 694 F.3d at 1025 (quoting Roe v. Wade, 410 U.S.

113, 128 (1973)). And McCormack conceded that Roe and

other related cases have held that the possibility of future

pregnancy “may be too speculative and conjectural for

standing.”

9

Nevertheless, McCormack continues to have standing

based on the ongoing risk of prosecution for the termination

of her past pregnancy. The district court properly noted that

“[a]t the outset of this litigation, McCormack had standing to

challenge the constitutionality of section 18-606 in

conjunction with both section 18-608(1) and section 18-

608(2) . . . because she faced prosecution and continued to be

threatened with prosecution.” And McCormack presentlyhas

standing to challenge §§ 18-606 and 18-608 because, as

discussed in section A.2 above, the Prosecuting Attorney’s

offer of immunity does not guarantee that the prosecution of

McCormack would never recur. Because McCormack

9

Indeed, “there are circumstances in which the prospect that a [party]

will engage in (or resume) [its] conduct may be too speculative to support

standing, but not too speculative to overcome mootness.” Friends of the

Earth, 528 U.S. at 190. Therefore, even if McCormack may not have

standing to challenge § 18-606 on the basis of future pregnancies, that

does not moot her initial claim that she asserted when she properly had

standing. Id. (“Standing doctrine functions to ensure, among other things,

that the scarce resources of the federal courts are devoted to disputes in

which the parties have a concrete stake. In contrast, by the time mootness

is an issue, the case has been brought and litigated, often . . . for years. To

abandon the case at an advanced stage may prove more wasteful than

frugal.”).
16 MCCORMACK V. HERZOG

currently has standing based on a lingering risk of

prosecution under § 18-606, her injury is not conjectural or

hypothetical.

Lastly, the risk of continued enforcement of § 18-606

against McCormack is still redressable by declaratory relief. 

Accordingly, McCormack has standing to challenge the

enforcement of § 18-606 against her for her past alleged

abortion.

B. Dr. Hearn has standing to challenge §§ 18-505 and 18-

608.

The district court properly found that Dr. Hearn, as an

Idaho licensed physician intending to provide pre-viability

medical abortions, has standing to challenge §§ 18-505 and

18-608. We review the district court’s standing decision de

novo. Gospel Missions of America v. City of Los Angeles,

328 F.3d 548, 553 (9th Cir. 2003). To determine whether a

physician has third-party standing to assert the rights of

patients in the abortion context, the panel must determine:

(1) whether the physician alleges “injury in fact” to himself

or herself; and (2) whether the physician is a proper

proponent of the legal rights on which he or she bases the

suit. Singleton v. Wulff, 428 U.S. 106, 112 (1976).

Herzog concedes that we have held that a physician

possesses standing on his own behalf and on that of his

patients to challenge the validity of another Idaho abortion

statute. Planned Parenthood of Idaho, Inc. v. Wasden,

376 F.3d 908, 917 (9th Cir. 2004) (“[P]hysicians and clinics

performing abortions are routinely recognized as having

standing to bring broad facial challenges to abortion

statutes.”). The Supreme Court has also repeatedly held that
MCCORMACK V. HERZOG 17

a physician may “assert the rights of women patients as

against governmental interference” in the abortion context. 

Singleton, 428 U.S. at 118 (recognizing that “there seems

little loss in terms of effective advocacy from allowing [an

assertion of a woman’s right to an abortion] by a physician”);

see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833, 845 (1992) (allowing abortion providers to challenge a

state statute on behalf of third-party women who seek

abortion services); Griswold v. Connecticut, 381 U.S. 479,

481 (1965) (holding that physicians have standing to assert

the constitutional rights of patients to whom they prescribed

contraceptive devices).

Prosecuting Attorney Herzog attempts to distinguish Dr.

Hearn from other physicians who have been recognized as

having standing. Herzog asserts that Dr. Hearn cannot

challenge the validity of §§ 18-505 and 18-608 because he

has not established that he can provide abortions in a

“medically appropriate manner.” Herzog claims that Dr.

Hearn seeks to provide access to abortifacients, i.e.,

medication to induce abortions, under a regime that has

negative health and potentially life-threatening consequences

and a finding of standing cannot be “squarely adverse to the

interests of the patient.”

First, Dr. Hearn has stated his clear intention to “prescribe

FDA approved medications to women in Bannock County,

Idaho such as Plaintiff McCormack who . . . seek to

medically terminate their pregnancies in violation of the

restrictions contained in Idaho Code Title 18, Chapters 5 and

6 . . . prior to fetal viability.” Furthermore, Dr. Hearn intends

to perform medical abortions outside a clinical or hospital

setting through the second trimester. We have recognized

that a physician’s statement of intent is sufficient to establish
18 MCCORMACK V. HERZOG

standing, when the physician is at risk of criminal prosecution

under the relevant statutes. Wasden, 376 F.3d at 916–17 (“by

stat[ing] his clear intent[] to continue to perform abortions . . .

[a physician] has alleged a sufficiently concrete and imminent

injury—possible prosecution and imprisonment—to

challenge the provisions that ban abortion providers from

[providing medical abortions to women prior to fetal

viability.]”). Further, Dr. Hearn need not even claim a

“specific intent to violate the statute.” Id. at 917 (noting that

a plaintiff need only “reasonable fear a statute would be

enforced against it if it engaged in certain conduct”) (citation

omitted).

Second, Dr. Hearn’s intent to provide FDA-approved

medication to women to terminate their pregnancies prior to

fetal viability does not need to be supported by a

demonstration of the “medical appropriateness” of his ability

to provide medical abortions. Whether Dr. Hearn can provide

medical abortions in “an appropriate clinical setting” is

irrelevant to whether he, as an Idaho licensed physician, can

effectively represent the constitutional right to terminate a

pregnancy before viability. The Supreme Court has looked

to the professional relationship between a physician and a

patient, Griswold, 381 U.S. at 481, the economic harm on

abortion providers, Singleton, 428 U.S. at 112–13, and a

physician’s “direct stake” in the abortion process, Diamond

v. Charles, 476 U.S. 54, 67 (1986), when determining

standing. But an inquiry into the “medical appropriateness”

of an abortion provider’s practice is not only unprecedented,

but is also too ambiguous, and thus unwarranted.

Since 1997, Dr. Hearn has continuously been registered

with the Federal Drug Enforcement Agency and the Idaho

State Board of Pharmacy. And his ability to legally prescribe
MCCORMACK V. HERZOG 19

FDA-approved abortion medication in Bannock County is

sufficient to demonstrate an “actual and imminent”

injury—the risk of criminal prosecution for prescribing

abortion pills prior to viability.

Accordingly, the district court properly determined that

Dr. Hearn has standing to assert his patients’ rights in cases

challenging abortion restrictions, and we will consider Dr.

Hearn’s claims.

C. The statutes pose an undue burden on a

woman’s ability to obtain an abortion, and the

criminal sanctions for abortion providers are

unconstitutionally vague.

A woman has a Fourteenth Amendment right to terminate

a pre-viability pregnancy, “and to obtain it without undue

interference from the State.” Casey, 505 U.S. at 846. 

However, this right is not absolute, and the state may express

its interest in potential life by regulating abortions, so long as

the regulations do not pose an “undue burden” on a woman’s

ability to seek an abortion before the fetus attains viability. 

Id. at 874. Although the state may ensure that the woman’s

choice is informed, and protect the health and safety of a

woman seeking an abortion, the state may not prohibit a

woman from making the “ultimate decision” to undergo an

abortion. Id. at 878–79.

1. Standard of Review

We review de novo a district court’s grant of summary

judgment. Nunez v. City of San Diego, 114 F.3d 935, 940

(9th Cir. 1997). “[A] facial challenge to an abortion statute

will succeed where, in a large fraction of the cases in which
20 MCCORMACK V. HERZOG

the statute is relevant, it will operate as a substantial obstacle

to a woman’s choice to undergo an abortion.” Wasden,

376 F.3d at 921 (internal quotation marks, brackets, and

citation omitted). And the “large fraction” is computed by

focusing on “those upon whom a challenged law would have

some actual effect, rather than all women . . . seeking an

abortion.” Id. There is also a heightened need for

definiteness “when the ordinance imposes criminal penalties

on individual behavior or implicates constitutionally

protected rights.” Nunez, 114 F.3d at 940.

2. Section 18-505 is facially unconstitutional because it

categorically bans some abortions before viability.

Section 18-505 prohibits abortions of fetuses of twenty or

more weeks postfertilization. The twenty-week ban applies

regardless of whether the fetus has attained viability.

The Supreme Court reaffirmed in Casey that an undue

burden exists if the purpose or effect of a provision of law

places a substantial obstacle in the path of a woman seeking

an abortion before the fetus obtains viability. Casey,

505 U.S. at 846. In Planned Parenthood of Cent. Mo. v.

Danforth, 428 U.S. 52, 64 (1976), the Court further explained

that “it is not the proper function of the legislature or the

courts to place viability, which essentially is a medical

concept, at a specific point in the gestation period.” Because

§ 18-505 places an arbitrary time limit on when women can

obtain abortions, the statute is unconstitutional. We also

recently held unconstitutional an Arizona law banning

abortions after the twenty week gestational age because the

law operated as a ban on a woman’s constitutional right a to

pre-viability abortion. Isaacson v. Horne, 716 F.3d 1213,

1225–1227 (9th Cir. 2013).
MCCORMACK V. HERZOG 21

Prosecuting Attorney Herzog concedes that “[n]o dispute

exists that medical induction abortions can occur between the

twentieth week of pregnancy and fetal viability.” Yet Herzog

attempts to reframe the issue as whether the statute imposes

an undue burden on Dr. Hearn’s proposed plan to provide

medical abortions in the patient’s home after the twentieth

week of pregnancy. Although Dr. Hearn’s proposed plan

would be detrimentally affected by the enforcement of § 18-

505, the broader effect of the statute is a categorical ban on

all abortions between twenty weeks gestational age and

viability. This is directly contrary to the Court’s central

holding in Casey that a woman has the right to “choose to

have an abortion before viability and to obtain it without

undue interference from the State.” Casey, 505 U.S. at 846

(emphasis added).

Thus, the district court did not err in finding § 18-505

facially unconstitutional.

3. Section 18-608(2)is facially unconstitutional because

it requires hospitalizations for all second-trimester

abortions.

Section 18-608(2) requires that all second-trimester

abortions occur in a hospital. Ifthe licensed medical provider

fails to abide by § 18-608(2), he or she will be subject to civil

and criminal penalties, as outlined in §18-605.

The Supreme Court has twice invalidated requirements

that physicians perform all second-trimester abortions in

hospitals. See Planned Parenthood Ass’n of Kansas City,

Mo., Inc. v. Ashcroft, 462 U.S. 476 (1983); City of Akron v.

Akron Center for Reproductive Health, Inc., 462 U.S. 416

(1983) (overturned on other grounds). “[S]uch a requirement
22 MCCORMACK V. HERZOG

unreasonably infringes upon a woman’s constitutional right

to obtain an abortion.” Planned Parenthood Ass’n of Kansas

City, Mo., Inc., 462 U.S. at 482 (internal quotation marks

omitted).

Prosecuting Attorney Herzog attempts to distinguish the

present case from this controlling Supreme Court precedent

by arguing that both the absolute and percentage terms of

second trimester abortions in Idaho are “quite small.” 

Between 2007 and 2011, about 1.2 percent of abortions in

Idaho were performed during or after the fourteenth week of

pregnancy and only about 21.5 percent of those abortions

were non-surgical. But Herzog draws the court’s attention to

irrelevant figures. The percentage of non-surgical second

trimester abortions is certainly small, but for “a large fraction

of the cases in which [the statute] is relevant,” required

hospitalization will operate as a substantial obstacle. Casey,

505 U.S. at 895.

Herzog also asserts that Dr. Hearn is not “competent

professionally” to provide medical abortions outside of a

hospital setting. However, we think that an inquiry into the

“medical appropriateness” of Dr. Hearn’s proposed

prescriptions of abortion pills is not properly part of our

analysis, especially given the vagueness of that phrase.

Therefore, the district court did not err in finding § 18-

608(2) facially unconstitutional.

4. Section 18-608(1) in conjunction with § 18-605 is

unconstitutionally vague.

Section 18-608 outlines where certain abortions are

permitted. Specifically, §18-608(1) requires abortions during
MCCORMACK V. HERZOG 23

the first trimester to take place in a hospital, physician’s

office, or clinic that is:

properly staffed and equipped for the

performance of such procedures and

respecting which the responsible physician or

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.

Idaho Code Ann. § 18-608(1) (emphasis added).

Section 18-605 establishes civil and criminal penalties for

persons who perform abortions other than as permitted by the

remainder of Title 18, Chapter 6 of the Idaho Code. In

particular, § 18-605(3) states that the licensed or certified

health care provider must “knowingly” violate the statute to

be guilty of a felony.

Herzog contests the district court’s determination that

§ 18-608(1) is unconstitutionally vague, arguing that:

(1) whether a medical office is “properly staffed” and

whether “satisfactory arrangements” with a hospital have

been made “connote objectively determinable facts,” and

(2) the § 18-605 enforcement provisions require the alleged

violation to be performed “knowingly.” We are not

persuaded.

“To avoid unconstitutional vagueness, an ordinance must

(1) define the offense with sufficient definiteness that
24 MCCORMACK V. HERZOG

ordinary people can understand what conduct is prohibited;

and (2) establish standards to permit police to enforce the law

in a non-arbitrary, non-discriminatory manner.” Nunez,

114 F.3d at 940. If a statute subjects violators to criminal

penalties, the need for clear definitions “is even more

exacting.” Forbes v. Napolitano, 236 F.3d 1009, 1011 (9th

Cir. 2000). The Supreme Court has held that “a criminal

statute that fails to give a person of ordinary intelligence fair

notice that his contemplated conduct is forbidden by the

statute or is so indefinite that it encourages arbitrary and

erratic arrests and convictions is void for vagueness.”

Colautti v. Franklin, 439 U.S. 379, 390 (1979) (internal

quotation marks and citations omitted). “[W]here the

uncertainty induced by the statute threatens to inhibit the

exercise of constitutionally protected rights[,]” the law is

even more likely to be found unconstitutionally vague. Id. at

391.

In Gonzales v. Carhart, 550 U.S. 124, 147–48 (2007), the

Supreme Court considered whether the Partial-Birth Abortion

Ban Act of 2003, 18 U.S.C. § 1531 (2000 ed., Supp. IV), was

unconstitutionally vague. The Act defines the unlawful

abortion in explicit terms and includes very specific

“anatomical landmarks” to put abortion providers on notice

as to what type of abortions are prohibited. Gonzales,

550 U.S. at 147–48. The Court found that the Act sets forth

“relatively clear guidelines as to prohibited conduct and

provides objective criteria to evaluate whether a doctor has

performed a prohibited procedure[,] . . . [u]nlike the statutory

language in Stenberg [v. Carhart, 530 U.S. 914 (2000)] that

prohibited the delivery of a substantial portion of the fetus.” 

Id. at 149 (internal quotation marks omitted).
MCCORMACK V. HERZOG 25

Unlike the terms in the Act at issue in Gonzales, the terms

“properly” and “satisfactory,” as used in § 18-608(1), lack

precise definition, and “subject[] physicians to sanctions

based not on their own objective behavior, but on the

subjective viewpoints of others.” Tucson Woman’s Clinic v.

Eden, 379 F.3d 531, 555 (9th Cir. 2004) (internal quotation

marks omitted). Neither term is defined in the statute, nor are

they terms of art with specific definitions in the medical

context.

We have found a statute unconstitutionally vague that

required that patients “be treated with consideration, respect,

and full recognition of the patient’s dignity and individuality”

because “understandings of what ‘consideration,’ ‘respect,’

‘dignity,’ and ‘individuality’ mean are widely variable, . . .

[making the statute too] vague and subjective for providers to

know how they should behave in order to comply, as well as

too vague to limit arbitrary enforcement.” Id. at 554–55

(internal quotation marks omitted). Here, the terms

“properly” and “satisfactory” are similarly subjective and

open to multiple interpretations.

The district court noted that the dictionary definitions of

the terms also are unhelpful in curing the statute’s vagueness. 

“Properly” means “suitably, fitly, rightly, correctly.” 

WEBSTER’S THIRD INT’L DICTIONARY 1818 (3d ed. 1976)). 

“Satisfactory” means “sufficient to meet a condition or

obligation.” Id. at 2017. Instead of providing clarity, the

definitions raise the same questions as the terms themselves:

proper, satisfactory, fit, right, or sufficient according to whom

or what standard?

Unlike the specific “anatomical landmarks” in the statute

at issue in Gonzales, § 18-608(1) fails to provide a specific
26 MCCORMACK V. HERZOG

standard to measure or determine what is “proper” or

“satisfactory.” The district court correctly recognized the

“trap” of these imprecise terms: they “could well impose

criminal liability on activity that offends some people’s sense

of what is ‘properly staffed and equipped’ or what

arrangements are ‘satisfactory,’ but may appear to others as

more than adequate.”

Moreover, the scienter requirement in § 18-605(3) (a

medical provider must “knowingly violate[] the provision[]”

to be guilty of a felony), does not make the widely variable

definitions of “properly” and “satisfactory” any less vague.

Because the enforcement of the statute relies on “wholly

subjective judgments without statutory definitions,” a

physician could argue that he believed he complied with § 18-

608(1). United States v. Williams, 553 U.S. 285, 306 (2008). 

Additionally, “this lack of clarity may operate to inhibit [a

physician’s provision of legal abortion services] because

individuals will not know whether the ordinance allows their

conduct, and may choose not to exercise their rights for fear

of being criminally punished.” Hunt v. City of Los Angeles,

638 F.3d 703, 713 (9th Cir. 2011).

Herzog also attempts to import the “reasonable physician”

standard from Idaho’s medical practice liability statute

(which is not being challenged in this case) to argue that a

standard of objective reasonableness for physicians generally

applies to all instances of civil liability—including § 18-608. 

However, violators of § 18-608 are not just subject to civil

penalties, but also to criminal prosecution under § 18-605. 

And whereas the legislature definitivelyoutlined a reasonable

physician standard in the medical malpractice statute, it failed

to do so in the abortion statute. Without clear language that

gives physicians adequate notice of how to comply with the
MCCORMACK V. HERZOG 27

statute, § 18-608(1), as interpreted with § 18-605, is

unconstitutionally vague. See Colautti, 439 U.S. at 391

(finding a statute void for vagueness “where the uncertainty

induced by the statute threatens to inhibit the exercise of

constitutionally protected rights,” even where the law could

have some constitutional applications).

Lastly, Herzog argues that if our court finds § 18-608(1)

impermissibly vague, we should sever the unconstitutional

words from the statute pursuant to § 18-616, the law’s

severability clause. The Idaho Supreme Court has held that

“when the unconstitutional portion of a statute is not integral

or indispensable, it will recognize and give effect to a

severability clause.” Simpson v. Cenarrusa, 944 P.2d 1372,

1377 (Idaho 1997).

Assuming the terms “properly” and “satisfactory” are

severable, striking these words from the statute would not

remedythe constitutional infirmities of the statute. Removing

the ambiguous terms would result in the following language:

Abortions permitted by this subsection shall

only be lawful if and when performed in a

hospital or in a physician’s regular office or a

clinic which office or clinic is ______ staffed

and equipped for the performance of such

procedures and respecting which the

responsible physician or physicians have

made ______ 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.
28 MCCORMACK V. HERZOG

The appropriate amount of staff and equipment for an

abortion remains unclear, as there may be differing opinions

about what is sufficient. It also is unclear what types of

arrangements must be made with acute care hospitals to

comply with the statute. “Given the potential for harassment

of abortion providers, it is particularly important that

enforcement of anyunconstitutionally vague provisions of the

scheme be enjoined.” Tucson Woman’s Clinic, 379 F.3d at

554. Thus, the lack of definitive standards for performing

legal first trimester abortions causes § 18-608(1) to remain

unconstitutionally vague.

CONCLUSION

For the foregoing reasons, we affirm the district court’s

judgment. McCormack’s challenge to § 18-606 is not moot

because her claims fall under three exceptions to the

mootness doctrine: (a) “voluntary cessation,” (b) “collateral

legal consequences,” and (c) “capable of repetition, yet

evading review.” McCormack has standing based on the

lingering risk of prosecution under § 18-606. Dr. Hearn has

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. 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. Section 18-608(1) in conjunction with § 18-605 is

unconstitutionally vague.

AFFIRMED.