F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J E N N I E L I N N M C C O R

M A C K , Plaintiff-Appellee
,

R I C H A R D H E A R N , M.D., on his own behalf and on behalf of his patients, Intervenor-Plaintiff-Appellee
,

v

.

S T E P H E N F

. H E R

Z O G , B annock County Prosecuting Attorney
, Defendant-Appellant

. N o. 13-35401

D.C. No. 4:11-cv-00433- B L W

OPI NI ON

A ppeal from the United States District Court

f or the District of I daho B . L y nn W inmill, Chief District J udg e, Presiding

Arg ued and Submitted J uly 18, 2014—Pasadena, California

F iled May

29, 2015

B efore: Harry

Preg erson and Kim McL ane W ardlaw, Circuit J udg es, and Donald E. W alter, Senior District

J udg e. *

Opinion by

J udg e Preg erson

* T h e H o n orab le Do n ald E. W alter, Sen io r District J u d g e f o r th e U .S. District Co u rt f

o r th e W estern District o f L o u isian a, sittin g b y d esig n atio n

.M C C O R M A C K V

. H E R

Z O G 2

SUMMARY * *

Civil Rights

The panel affirmed the district c ourt’s summary judg ment for plaintiffs in an action broug ht pursuant to 42 U .S.C. § 1983 challeng ing the Pain-Capable Unborn Child Protection Act, which r e g ulates the p erformance of abortions in I daho.

Plaintiff, J ennie McCormack, was criminally charg ed with vi olating I daho Code § 18-606, for knowing ly submitting to an abortion not authoriz ed under the statute, o r purposely self-terminating a preg nancy

. After the c r i m inal

c o mplaint was dismissed without prejudice by a state court , McCormack broug ht a c lass action in federal court a g ainst the prosecuting attorney , who subsequently offered McCormack transactional immunity from prosecution for the alleg ed abortion, which she declined. McCormack’s attorney , Dr. Hearn, who is also a licensed phy sician, int e rvened in the action on his own behalf and on the behalf of his patients.

The p anel held that M c C o r mack’s challeng e to §18-606 was not moot because her claims fell under three ex ceptions
to the moot n e s s doctrine: (a) “voluntary cessation,” (b) “c o l l ateral leg al consequences,” and (c) “capable o f repetition, y et evading review.” The panel further held th at McCormack had standing based on the ling ering risk o f prosecution under § 18-606.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M C C O R M A C K V

. H E R

Z O G 3

The panel held that Dr. Hearn had standing b ased on his intention to provide m e d i cal a b ortions throug h the second trimester outside a clinical or hospital set t ing and based on his possible prosecution under § 18-505 and § 18-608.

The pan e l h e ld that Section 18-505, which prohibits abortions of fetuses of twenty or more w eeks postfertiliz ation,

was facially u nc o n s t itutional because it categ orically bans

some abortions before viability

. The panel further held that Section 1 8

- 6 0 8(2), which requires that all second-trimester abortions o ccur in a hospit a l, was facially unconstitutional because it places an undue burd e n on a woman’s ability to obtain an abortion by r e q u iring hospitaliz ations for all second-trimester abortions. F ina l ly
, the p anel held that Section 18-608(1) ( r e q u iring
, among other thing s, that ab o rtions during the first trimester take place in a medical office that is properly staffed a n d that the responsible phy sician make satisfactory arrang ements with an acute care hospital in care of complications or emerg encies) in conjunction with § 18-605 was unconstitutionally vag ue.

COUNSEL

Clay R. Smith (arg

ued), Deputy A t torney General, a nd Steven L

. Olsen, Chief of Civil L itig ation, Attorney G eneral’s Office, B oise, I daho for Defendant-Appellant.

Richard A. Hearn ( a r g ued), Racine, Olson, Ny e, B udg e & B ailey
, Chartered, Pocatello, I d aho, for Plaintiff-Appellee.

J ack Van Valkenburg h, B oise, I d a h o , for I ntervenor-PlaintiffAppellee.M C C O R M A C K V

. H E R

Z O G 4

Kathleen M. O ’Sullivan and Katherine G. Galipeau, Perkins Coie L L P, Seattle, W ashing ton, for Amici Curiae L eg al Voice, Center for Repr o d u ctive Rig hts, National A dvocates for Preg nant W omen, an d Planned Parenthood of the Great Northwest.

L awrence J

. J oseph, W ashing ton, D.C., for Amicus Curiae Eag le F orum Education and L eg al Defense F und.

OP INION

PREGERSON, Circuit J udg e :

I n this 42 U.S.C. § 1983 a c t i o n , Stephen Herz og , the Prosecuting Attorney of B annock County
, I daho, appeals the district court’s order deny ing his motion for p artial summary judg ment and g ranting the joint motion for part i al summary judgm en t in favor of appellees J ennie McCormack (“McCormack”) and Dr. Richard Hearn (“Dr. Hearn”).

B e fore the district court, J ennie McCormack claimed that I daho Code Title 18, Chapters 5—the Pain-Capable Unborn Child Protection Act (“PUCPA”)—and 6, which reg u late the performance of abortions, viola t e v arious provisions o f the United Stat e s Constitution. McCormack’s attorney is Dr. Hearn, who is also an I daho licensed p h y sician who intends
t o provide his patients with pre-viability medical abortion s

. Dr. Hearn, as a third party -intervenor, also challeng ed the constitutionality

of §§ 18-505 and 18-608, which fall within Chapters 5 and 6 of I daho Code Title 18.

W e have j u risdiction pursuant to 28 U.S.C. § 1291. F o r the reasons set forth below, we affirm.M C C O R M A C K V

. H E R

Z O G 5

BACK G ROUND

This case had its g enesis in a n I daho state c r i m inal prosecution when, on M a y 18, 2011, the then Prosecuting Attorney f

or B annock County
, I daho, Mark Hiedeman, 1 filed

a criminal complaint ag a inst J ennie McCormack. The

c omplaint charg ed McCormack with violating I daho Cod e § 1 8-6 0 6
, 2 for knowing ly submitting to an abortion not

au t h o r i z ed u nder the statute, or p urposely self-terminating a preg n ancy

. McCormack admitted to the police that she selfinduced an a

bortion a f ter ing esting a p a c k o f five pills. 3 A phy sician ex amined the fetus and estimated its g estational ag e to h ave been b etween nineteen a nd twenty -three weeks, “ but with difficult certainty

. ”

Then on September 7
, 2 011, a n I d a h o state judg e dismissed the criminal complaint w ithout prejudi c e for lack of probable cause.

1 Step h en Herzo g (“ Herzo g ”) su cceed ed Mark H ied em an as P ro secu tin g At t o r n e y o n J an u ary 1 4
, 2 01 3
, an d w as au t o m atically su b stitu ted as th e d ef en d an t p u rsu an t to Fed . R. Civ . P . 2 5 (d ).

2 Sectio n 1 8

- 6 0 6 p ro v id es th at a w o m an w h o su b m its to an ab ortio n

in

a m an n er n ot au th o rized b y statu te, o r acts as an ac c o m p l i c e to su ch an ab o rtio n , w i ll be g u i lty o f a f elo n y , f in ed
, an d/o r im

p riso n ed f

o r n o t less th an o n e y ear, an d n o t m ore th an f iv e.

3 McCo rm ack k

n ew th at ab o rtio n s are n o t av ailab le in so u th east Id ah o , w h ere sh e liv ed

. McCo rm ack w as aw are th at ab o rtio n s are av ailab l e in Salt L ak e City
, Utah
, an d co st b etw een $4 0 0 an d $ 2 ,0 0 0, d ep en d in g o n th e stag e o f t h e p r e g n an cy

. McCo rm ack l earn ed t h at m ed icatio n s co u ld b e

u sed to perf

o rm ab o rtio n s an d th at th e m ed icatio n s w ere sig n if ican tly less

ex p en siv e th an su

rg ical ab o rtio n s. McCo rm ack ’ s sister alleg ed l y fo u n d

u n sp ecif ied ab o rtio n pills o n lin e, p aid $ 2 0 0 f o r th em , an d h ad th em sh ip p ed to McCo rm ack

in Id ah o.M C C O R M A C K V

. H E R

Z O G 6

On September 16, 2011, McCormack filed a class action in the United States District Court for the Distric t o f I daho
ag ainst the then Prosecuting Attorney Hiedeman, “seeking a determination that section 18-606, as well as other provisions of Title 1 8, Chapters 5 a n d 6 o f the I d aho Code, which also
reg ulate abortion[ s]
, violate various provisions of the United States Constitution.”

On November 14, 2011, Chief United St a tes District J udg e f or the District of I da h o , B. L y nn W inmill, g ranted McCormack’s mot i on for preliminary injunctive relief a nd

e n j oined then Prosecuting Attorney Hiedeman fr o m e n f o r c i n g § 18-606 (criminaliz ing submitting to an abortion), a s interpreted tog ether with § 18-608(1). 4 The district court, however, held that M c C o r mack did not have standing to challeng e § 18-608(2) 5 or § 18-505. 6

On Aug ust 22, 2012, Prosecuting Atto r n e y Hiedeman determined that he w ould not re-file a c r i minal complaint
ag ainst McCormack for alleg edly 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 McCo rmack transactional immunity from

4 Sectio n 1 8- 6 0 8 (1 ) req u ires a ph y sician to p e r fo rm all f irst t rim ester ab o rtio n s i n a “ pro p erly staf f ed an d eq u ip p ed ” h o sp ital, m ed i cal o f f ice, or clin ic. T h e p h y sician m

u st also m ak e “ satisf

acto ry arran g em en ts w ith on e

o r m o re acu te care h o s p itals w ith in reaso n ab le p ro x im ity ,” i n c a se of

co m plicatio n s o r em erg en cies related to th e ab o rtio n

.

5 S ectio n 1 8

- 6 0 8 (2 ) req u ires all seco n d t rim ester ab o rtio n s to t ak e p l ace in a h o sp ital.

6 Sectio n 1 8

- 5 05 categ o rically b an s ab o rtio n s o f f etu ses o f tw en ty or

m o re w eek s p o stf

ertilizatio n

ex cep t in p articu lar circu m stan ces.M C C O R M A C K V

. H E R

Z O G 7

prosecution for the alleg ed D ecember 2010 ab o r t ion. McCormack declined to sig n the ag r eement.

On F ebruary 23, 2012, McCormack’s attorney , Dr. He arn, moved to intervene “ on his own behalf and on the beha l f o f his patients.” Dr. Hearn is a licensed phy sician as well as an attorney in I daho, and has stated his intent to provide medical abortions by “prescrib[ ing ] F DA approved medications to

women in B annock County
, I daho such as McCormack who

. . . seek to medically (non-surg ically ) terminate their
preg n ancies pri o r to fetal viability in violation of the restrictions contained in I daho Code Title 18, Chapters 5 a nd 6.” Medical abortions induced b y p i l l s are distinct from
surg ical or therapeutic abortions which usually take place in

a medical clinic or a h ospital. Since 1997, Dr. Hearn has continuously reg istered w ith the F e d e ral Drug Enforcement Ag ency and the I daho State B oard of Pharmacy
, which a llows him to leg ally prescribe medication in B annock County

. Dr. Hearn has not provided medical abortion s i n the past, does
not have a medical office in which to treat pat i en t s, and has practiced as a full-time attorney since 1997.

The d istrict court g ranted Dr. Hearn’s motion to intervene. Dr

. Hearn f iled an amended complaint-inintervention that similarly challeng ed the constitutionality o f certain provisions of I daho Code Title 18, Chapters 5 and 6. Pursuant to 42 U.S.C. § 1 983, D r. Hearn soug ht to enjoin the Prosecuting Attorney from criminally p r osecuting o r threatening to prosecute any w oman who seeks an abortion o r any health provider f

or violating I daho Code Title 18, Chapters 5 and 6. Dr. H e a r n also soug ht a d eclaratory judg ment striking d own the relevant I daho statutes’ criminal sanctions as unconstituti o n a l facially and a s applied toM C C O R M A C K V

. H E R

Z O G 8

women seeking an abortion in B annock County
, I daho, or any health provider who provides assistance to such women.

On September 1 1, 2012, w e a f firmed the district court’s
g rant of a preliminary injunction that enjoin e d the Prosecuting Attorney from prosecuting McCor m ack under §§ 1 8 -606 and 18-608(1), a nd e x panded t h e injunction to include § 18-608(2) beca use McCormack f aced a “ g enuine threat of p rosecution under t h [ is] subsection of the statute.” McCormack v

. Hiedeman
, 694 F .3d 1004, 1020–21 (9th Cir. 2012) ( McCormac k I

). W e limited the preliminary injunction, however, to affect only McCormack (as opposed
to all women a f

f e c ted by § 18-606), id. at 1019–20, a nd further held that McCormack lacked standing to seek pre-enforcement relief ag ainst the e nforcement of PUCPA on the basis of future preg

nancies, id. at 1022–25.

O n October 16, 2012, before the district cou r t McCo rm a c k and Dr. H earn jointly moved for partial
summary judg ment to declare three I daho statutes—§ 1 8-606, i n co njunction with § 1 8 -608(1) or (2); § 18-605, 7 i n conjunction with § 18-608(1) o r ( 2 ) ; and § 18-505, in conjunction with § 18-507 or § 1 8

- 5 0 8

— u n c o n s t i t u tional, a nd
to permanently enjoin the Prosecuting A t t orney from enforcing the statutes.

On March 6, 2013, the district c o urt g ranted McCormack and Dr. Hearn’s joint motion for partial summar y judg ment

7 Sectio n 1 8- 6 0 5 estab lish es civ il an d crim in al p en alties f o r p erso n s w

h o p erf o rm ab o rtio n s o th er th an as p erm itt e d b y t h e rem ain d er o f T itle 1 8
, C h ap t er 6 o f th e Id ah o Co d e. In particu lar, § 1 8

- 6 0 5 (3 ) states th at t h e licen sed o r certi fi e d h ealth care p ro v id er m u st “ k n o w in g ly ” v io late th e statu te to b e g u ilty

o f a f elo n y

.M C C O R M A C K V

. H E R

Z O G 9

and denied Prosecuti n g A ttorney Herz og ’s cross-motion for partial summary judg ment. On March 2 0, 2013, McCormack and Dr. Hearn moved to d ismiss all remaining claims ag ainst Herz og and to enter a f

i n a l j u d g ment. The district court g ranted the motion and ente r e d final judg ment on May 2, 2013, declaring the challeng ed statutes unconstitutional, a nd enjoining Herz og from prosecuting McCormack or Dr. Hearn under the challeng ed statutes.

Herz og timely appeals the district court’s final judg ment.

D ISCUSSION

A. This court has jurisdiction.

1. Standard of Review

“Mootness is a question of law revie w e d de novo.” Siskiyou Reg’l Educ. Project v

. U.S. Fores t S e r v

. , 5 65 F .3d 545, 559 (9th Cir. 2009) (quoting Barter F air v. Jackson County
, 3 7 2 F. 3 d 1128, 1133 (9th Cir. 2 004)). “A case becomes moot whenever it loses its c h a r a c ter as a present, live controversy

. . . . The question is n ot whether the precise relief soug ht 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. U n i t e d States Forest Serv.
, 442 F .3d 1147, 1157 (9th Cir. 2006)).

Questions of stan d i n g a re also r eviewed de novo, but underly ing factual f

inding s are reviewed f

or clea r error. Preminger v. Peake , 552 F .3d 757, 762 n.3 (9th Cir. 2008).M C C O R M A C K V

. H E R

Z O G 10

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

Herz og asserts that McCormack’s challeng e to § 18-606 is moot because the Prosec u t i n g Attorney g ranted McCormack transactional immunity f o r the alleg ed 2010 abortion.

“A case mig ht become moot if subsequent events make it absolutely cl e a r that the alleg edly wrong ful behavior could
not reasonably be ex pected to r e c u r. The heavy burden o f
pe r suading the court that the challeng ed c onduct cannot reasonably be ex pected t o s tart up ag ain lies with the party

a s s e rt ing mootness.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (

TOC)

, Inc.
, 528 U .S. 1 67, 189 (2000) (internal quotation marks and citation omitted). Her z og , therefore,
must demonstrate that his office w ill never ag ain p r o s ecute McCormack under § 18-606, or that t h e court is n o long er capable of “affect[ ing ] the rig hts of litig ants 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)).

Herz og ’s office offered McCormack transactional i m m u nity from p r osecution for h e r alleg ed 2010 abortio n , which McCormack declined to accep t

. 8 The district court questioned the validity of the offer of transactional immunity because the timing of the offer sug g ests an attempt to “moot McCormack’s claims a

nd thereby avoid this litig a tion—and its challeng e to the constitutionality o f sections 18-606 and

-

8 Li ke th e d istrict co u rt, w e assu m e, b u t do n o t d ecid e, th at t h e P ro secu t i n g A t to rn ey ’ s o f f er to n o t p ro s ecu te McCo rm ack is a tran sactio n al im

m u n ity ag reem en t.M C C O R M A C K V

. H E R

Z O G 11

608.” The district court further d etermined that other f actors also sug g e sted a live controversy :

(1) The specific relief McCormack seeks— d e c l a r a t o r y r e l i e f t h a t § 1 8

- 6 0 6
, interpreted with §§ 18

- 6 0 8(1) and 18- 608(2), is facial ly unconstitutional—is still available.

(2) McCormack continues to assert that the provisions are unconstitutional.

(3) Prosecuting Attorney Herz o g continues to assert that the p r ovisions a re not unconstitutional.

Moreover, the district court determined t h a t “[ t] h ere is a

s i gn ificant public interest in settling the leg ality of these provisions, and the ex istence of this interest ‘militates ag ainst

a mootness conclusion.’” ( citing Olagu e s v. Russoniello
, 770 F .2d 791, 794–95 (9th Cir. 1985)).

McCormack arg ues that her claims are not moot because they fall under three ex ceptions t o t h e mootness doctrine: (a) “voluntary c essation,” (b) “collateral leg al consequences,” and (c) “capable of repetition, y et evadingreview.”

(a) McCorm ac k is correct that this case falls within the “voluntary c essation” ex c eption. Herz og acknowledg e s that under the “voluntary cessation” ex cept i o n , it is well-settled that “a d efendant c l a i m i ng that its voluntary compliance

moo t s a case bears the formidable burden of showing that it is absolutely clear the a lleg edly wrong ful behavior c ould not reasonably be ex pected to re c u r.” F riends of the Earth
,M C C O R M A C K V

. H E R

Z O G 12

528 U.S. at 190. Yet Herz og a rg ues that the court should presume that the g overnment is acting in g ood faith, that the B annock County P ro s ecuting Attorney office’s decision
ag ainst re-filing criminal charg es was made in “the interests of justice,” and that the offi c e’ s s p a r se history of bring ing criminal charg es under § 18-606 demonstrates a lack o f “biased calculus.” A p res u m ption o f g ood faith, however,
cannot overcome a c ourt’s w ariness of appl y i n g mootness under “protestations of repe n t a nce and reform, especially when abandonment seems timed to anticipate suit, and there is prob ability of resumption.” United States v. W .T. Grant Co.
, 3 4 5 U .S. 629, 632 n.5 (1953) (quoting United States v

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

F urthermore, while a statutory chang e “is usually enoug h
to render a c ase moot,” an e x ecutive action that is not g overned by any clear or codified procedu r es cannot moot a claim. B ell v. City of Boise
, 7 09 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 [ o ffer o f transactional immunity ]
, the ease w i th which the [ Prosecuting Attorney ] could do so co u nsels ag ainst a finding o f mootness.” Id. at 900. The discretionarydecision to not refile c riminal c harg es ag a in s t McCormack is neither “entrenched” nor “permanent.” Id.

I n add i t i o n to the suspicious timing of the offer o f
t r ansactional immunity
, the d istrict c o urt noted that Her z o g has “never repudiated the statute a s unconstitutional, and he did not c ease McCormack’s p rosecution because he believed the p rosecution was unlawful.” I nstead, Herz og ’s office first determined that it had insufficient e vidence to re-file criminal charg es ag ainst McCormack. Then, Herz og ’s office offeredM C C O R M A C K V

. H E R

Z O G 13

McCorma c k transactional immunity f rom prosecution a fter

our court affirmed the d istrict court’s decision that the I daho
statutes imposed an undue b urden o n a woman’s a b i l i t y to terminate h er p reg n ancy

. The offer of immunity does not b y itself make it “absolute l y clear” that the prosecution o f McCorma c k would never recur. Friends of the Earth
, 528 U.S. at 170; s ee a lso O lagues
, 7 70 F .2d at 795 (finding

a continuing case or controversy w here the g overnment “ did
not voluntarily

cease the challeng ed activity because [ it] felt that the inv es t i g a tion w as improper[
, but, r ] ather, [ the
g overnment] terminated the investig ation solely b ecause it failed to produce evidence suppo r t i n g a ny f urther investig ative activities.”).

(b) T he “collateral leg al c onsequences” ex ception also
ap p lies. “[ A ] lthoug h the primary injury may have passed”—Herz og has offered transactional i mmunity to McCormack—there still ex ists “‘a substantial controversy , between parties having a dverse leg a l interests, o f suf f i c i e nt im m ediacy a

nd reality to warrant the issuance of a declaratory judg men t

. ’” E.E.O.C. v. Fed. Exp. Corp.
, 558 F .3d 842, 847 ( 9 th Cir. 2008) (quoting In re Burrell
, 4 15 F .3d 9 94, 999 (9th Cir. 2005)). Herz og continu e s t o maintain the constitutional i t y of § 1 8-606, and d eclaratory relief remains available and unaffected.

(c) F inally , as the district court determined, McCormack would also be elig ible for the “ capable of r epetition, y et evading review” ex ception to the mootness doctri n e

. L ike
any other woman challeng ing a p otentially applicable abortion law, McCormack m a y become preg nant ag ain, a nd her term o f preg nancy is o f limited d uration. Herz og counters that McCormack lacks standing to challeng e § 18-606 on the basis of future preg nanc i e s

. Yet Herz og is conflating theM C C O R M A C K V

. H E R

Z O G 14

mootness of McCormack’s claim w ith her st a n d i n g to bring the claim. As elaborated below, McCormack may not have standing to challeng e the provision on the basis of future
pr e gn a n ci e s, but that does not moot her current action. See Friends of the Earth
, 528 U.S. at 1 9 1 (ex plaining that a postcomplaint resolution will not moot an a ction, “ despite the fact that [ the plaintiff] would have lacked initial standing h ad 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 o n a lingering risk of prosecution under § 18-606.

Prosecuting Attorney Herz og asserts that M c C o rmack lacks standing to challeng e § 18-606 on the basi s of future
preg n ancies.

Article I I I standing r equires that McCormack establish (1) that she personally has suffered an “actual or imminent,
not conjectural or hy

p othetical” inj u r y a s a result of the alleg edly illeg al c onduct; (2) a causal link between her injury and the challeng e d action; and (3) that the injury must likely be “redressed by a favorable deci s i o n ” o f a federal court. Lujan v. Defenders of W

ildlife
, 504 U.S. 555, 560–61 (1992) (internal quotation marks and citations o mitted). “ A p laintiff who challeng es a statute must demonstrate a realistic d a ng er of sustaining a direct injury as a r esult of the statute’s operation or enforcement.” Babbitt v

. United Farm W orkers Nat’l Union
, 4 42 U.S. 289, 2 98 (1979) (citing O ’ S hea v

. Littleton , 414 U.S. 488, 494 (1974)).M C C O R M A C K V

. H E R

Z O G 15

I n McCormack I

, we held that McCormack does not have standing to c h alleng e PUCPA “ b a sed on a possible future
preg n ancy ” becau s e “in McCormack’s case there a re too many ‘possibilities that may n o t take place and a ll may not combine.’” 694 F .3d at 1025 ( quoting Roe v. W ade
, 410 U.S. 113, 128 ( 1 9 7 3)). And McCormack conceded that Roe a nd other related cases have held that the possibil i t y o f future
preg n anc y “may be too speculative a nd conjectural for standing

. ” 9

Nevertheless, McC o r m ack continues to have standing based on the ong oing risk of prosecution for the termination of her past preg

nancy . The district c ourt properly noted that “[ a] t the outset of this litig ation, McCormack had standing to challeng e the constitutionality of section 1 8-606 in conjunction with both secti on 18-608(1) and section 18- 608(2)

. . . because she faced prosecution and continued to be threatened with prosecution.” And McCormack presently has standing to challeng e §§ 18-606 and 18-608 beca u se, a s discussed in section A .2 above, the Pr o s e c uting Attorney ’s offer o f immunity does not g uarantee that the prosecution o f McCormack wou l d n ever recur. B ecause McCormack

9 In deed
, “ th ere are circu m stan ce s i n w h i c h th e p ro sp ect th at a [p arty ]

w ill en g ag e in (o r resu m e) [its] co n d u ct m ay b e to o sp ecu l ativ e to su p p o rt stan d in g , b u t n ot to o sp ecu l ativ e to o v erco m e m o o tn ess.” Frien d s o f th e Ea rth
, 5 2 8 U.S. at 1 9 0

. T h eref o re, ev en if McCo rm ack m ay n o t h av e stan d in g to c h a l len g e § 1 8

- 6 0 6 o n th e b asis o f f u tu re p reg n an cies, th at d o es n o t m o o t h er in itial claim th at s h e a s s e r ted w h en sh e p ro p erly h ad
stan d in g

. Id

. (“ Stan d in g d o ctrin e f u n ctio n s t o en su

re, am o n g o th er th i n g s, th at th e scarce reso u rces o f th e f ed era l c o u rts are d ev o ted to disp u tes in

w h ich t h e p arties h av e a co n crete stak e. In co n trast, b y th e tim e m o o tn ess is an issu e, t

h e case h as b een b ro u g h t an d litig ated
, o f ten

. . . f or y ears. T o ab an d o n th e case at an ad v an ced stag e m ay p ro v e m o re w astef u l th an f ru g al.”).M C C O R M A C K V

. H E R

Z O G 16

currently has standing based on a ling ering risk o f prosecution u n d er § 18-606, her injury is not conjectural o r hy pothetical.

L astly
, the risk o f continued enfo r ce m ent o f § 18-606
ag ainst McCormack is still redressable by declaratory relief. According ly
, McCormack has standing t o c halleng e the enforc e m en t o f § 1 8-606 a g ainst h er f or her past alleg ed abortion.

B. Dr. Hearn has standing to challenge §§ 18-505 and 18- 608.

The district c our t p roperly found that Dr. Hearn, as an I daho licensed phy sician intending to provide pre-viab ility medical abortions, has standing to c hallen ge § § 18-505 a nd 1 8

- 608. W e review the district court’s standing decision d e

novo. Gospel Missions of A merica v. City of Los Angeles
, 328 F .3d 548, 553 (9th Cir. 2003). To determine whether a phy sician has third-party standing to a s s ert the rig hts o f patients in the abortion contex t, th e p anel must determine: (1) whether the phy sician a lleg es “ i njury in fact” to himself

or herself; and (2) whether the phy si c i a n is a proper proponent of the leg a l rig hts on wh i c h he or she bases the suit. Singleton v. W

ulff , 428 U.S. 106, 112 (1976).

Herz og concedes that we have held that a phy sician
possesses standing o n his o wn be h a l f a nd on that of his patients to challeng e the validity of another I daho abort ion
statute. Planne d P a renthood of Idaho, Inc. v. W asden
, 376 F .3d 908, 917 (9th Cir. 2004) (“[ P] h y sicians and clinics
p erforming abortions are routinely recog niz ed as hav i n g standing to bring bro a d f acial challeng es to abortion statutes.”). The Supreme Court has also repeatedly h e ld thatM C C O R M A C K V

. H E R

Z O G 17

a phy si c ian may “assert the rig hts of women patients a s ag ainst g overnmental interference” in the abortion contex t. Singleton
, 4 28 U.S. at 1 18 (recog niz ing that “there seems li t t l e loss in terms of e ffective advocacy from a llowing [ an assertion of a woman’s rig ht to an abortion] by a phy sician”);

see also Planned Parentho o d of Se. Pa. v. Casey
, 505 U.S. 833, 845 (1992) (al l o w i n g abortion providers to challeng e a state st atute on behalf of third-party women who seek abortion services); Griswold v. Connecticut
, 381 U.S. 479, 481 (1965) ( h o l ding that phy sicians have standing to assert the constitutional rig hts of patients to whom they prescribed contraceptive devices).

Prosecuting Attorney

Herz og attempts to disting uish Dr. Hearn from other phy si c i a n s who have been recog niz ed a s having standing

. H erz og a s serts that Dr. Hearn cannot challeng e the validity of §§ 18-505 an d 18-608 because he has not established that he can provide abortions in a “medically appropriate manner.” H erz og cl a ims that Dr. Hearn seeks to provide access to abortifacients, i.e.
, medication to induce abortions, under a reg ime that has
neg ative health and potentially life-threatening consequences and a finding of standing c annot be “squarely adverse to the interests of the patient.”

F irst, Dr. H earn has stated h is c lear intention to “prescribe F DA approved medications to w omen in B annock Co u nty , I daho such as Plaintiff McCormack who

. . . seek to medically terminate their preg nancies in violati o n o f the restrictions contained in I daho Code Title 18, Chapters 5 a nd 6

. . . prior to f

etal viability .” F urthermore, Dr. Hearn intends
to p e r f o rm medical a

bortions outside a clinical or hospital setting throug h the second trimester. W e have recogniz ed that a phy sician’s statement of intent is sufficient to establishM C C O R M A C K V

. H E R

Z O G 18

standing
, when the phy sician is at risk o f criminal prosecution under the relevant statutes. W asden
, 376 F .3d at 916–17 (“by stat[ ing ] his clear intent[ ] to continue to p erform abortions

. . . [ a phy sician] h as alleg e d a sufficiently c oncrete and imminent i n j u r y

— p o s s i b l e p r o s e c u t i o n a n d i m p r i s o n m e n t

— t o challeng e the provisions t hat ban abortion providers from [ providing medical abortions to women p rior to fetal viabil i t y

. ] ”). F urther, Dr. Hearn need not even claim a “specific intent to v iolate the statute.” I d. at 917 (noting that

a plaintiff n eed only “reason a ble f ear a statute would be enforced ag ainst it if it e n g a g ed in certain conduct”) (citation omitted).

Second, Dr. H earn’s intent to provide F DA-approved medication to women to terminate their preg nancies prior to fetal viability does not need to be suppor t e d by a demonstration of the “medical appropriateness” of his ability
to provide medical abortions. W h ether Dr. Hearn can provide medical abortions in “an appropriate clinical setting ” is irrelevant to whether he, as an I daho licensed phy sician, can effectively represent the constitutional r i gh t to terminate a preg n ancy before viability

. The Supreme C o u rt h as looked
to the professional relationship between a phy sician and a patient, G riswold
, 3 81 U.S. at 481, the economic harm on

a b o r t ion providers, S

ingleton
, 428 U .S. at 112–13, and a phy sician’s “direct s t a ke” in the a bortion process, Diamond

v

. Charles
, 4 76 U .S. 54, 67 (1986), when determ i n i n g standing

. B ut an inquiry into the “medical appropriateness” of an abortion provider’s practice is not only unprecedented, but is also too ambig u ous, and thus unwarranted.

Since 1 997, Dr. H earn has continuously been reg istered with the F ederal Drug Enforcement Ag e n c y a nd the I daho State B oard of Pharmacy

. And his ability to leg a lly prescribeM C C O R M A C K V

. H E R

Z O G 19

F DA-approved abortion medication in B annock County is sufficient to demonstrate an “ac t u a l and imminent” injury —the risk o f criminal prosecution for p rescribing abortion pills prior to viability

.

A cc o rding ly
, the district court properly determined that Dr. Hearn has standing to assert his patients’ r i gh ts in cases challeng ing abor t i o n restrictions, and we will consider Dr. Hearn’s claims.

C. The statute s p ose an undue burden on a

w o m an’s ab i l i t y to obtain an abortion, and the

cr im inal sanctions f

or abortion providers are unconstitutionally vague.

A woman has a F ourteenth Amendment rig ht to terminate

a pre-viability preg nancy , “and to obtain i t without undue interference from the State.” Casey
, 50 5 U.S. at 846. However, this rig ht is not absolute, a nd the state may ex press its interest in potential life b y reg ulating abortions, so long a s the reg ulations do n ot p ose an “undue burden” on a woman’s ability to seek an abortion before the fe t u s a t t ains viability

. Id. at 874. Althoug h the stat e m a y en s u re that the woman’s choice is informed, and protect th e h e a l t h and safety of a

woman seeking an a

b o rtion, the state may not prohibit a

woman from making the “ u l timate decision” to underg o an abortion. Id. at 878–79.

1. Standard of Review

W e r e v iew de n ovo a district court’s g rant of summary judg ment. Nunez v. Ci t

y o f S an Diego
, 114 F .3d 935, 940 ( 9 t h Cir. 1 997). “[ A] f

acial challeng e to an abortion statut e will succe e d w h e r e, in a larg e fraction o f the cases in whichM C C O R M A C K V

. H E R

Z O G 20

the statute is r elevant, it will o perate as a substantial obstacle
to a wo m an ’ s c hoice to underg o an a bortion.” W

asden
, 376 F .3d a t 921 (internal quotation marks, brac k ets, a nd citation o mitted). And the “larg e fraction” is computed b y focusing on “those upon whom a challeng ed law would have

some actual effect, rather than all women

. . . seeking an abortion.” Id. There is also a he i gh t ened need for definiteness “when the ordinance imposes criminal penalties

on individual beh avior o r implicates constitutionally protected rig hts.” 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 o r

more weeks postfertiliz ation. The twenty

- w e e k ban applies
reg ardless of whether the fetus has attained viability

.

The Supreme Court reaff i rmed in Casey that a

n undue burden ex ists if the purpose o r 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 8 46. I n Planned P arenthood of Cent. Mo. v

. Danforth
, 428 U.S. 52, 64 (1976), the Court further ex p lained that “it is n o t t h e proper function of the leg islature or the
courts to place viability
, which essentially i s a medical concept, at a specific point in the g estation period.” B ecause § 18-505 places an arbitrary time limit on when w o m en can obtain a bort i o n s , the statute is unconstitutional. W e also recently held unconstitutional a n Ariz ona law banning aborti o n s a f

ter the twenty week g estational a g e because the law operated as a ban on a woman’s constitutional rig ht a to pre-viability abortion. I

s a acson v. Horne
, 716 F .3d 1213, 1225–1227 (9th Cir. 2013).M C C O R M A C K V

. H E R

Z O G 21

Prosecuting Attorney Herz og concedes that “ [ n] o dispute

ex ists that medical induction abortions can occur between the twentieth week of preg n ancy and fetal viability .” Yet Herz og at t e mpts to reframe the issue as w hether the statute imposes

an undue burden on Dr. Hear n ’ s proposed plan to provide medical abortions in t h e p a tient’s home after the twentieth week of preg n ancy

. A l t houg h Dr. Hearn’s proposed p lan would be detrimentally

affected by

the enforcement of § 18- 505, the broader effect of th e s t a t u te is a categ orical ban on all abortions between twenty w eeks g es t ational a g e a nd viability

. This is directl y contrary to the Court’s c entral holding in Casey that a woman h a s the rig ht to “choose to have an abortion before viability and to obta i n i t w ithout

u n d u e interference from the State.” Casey
, 505 U.S. at 8 4 6 (emphasis added).

Thus, the district court did n ot e r r in finding § 18-505 facially unconstitutional.

3. S e c t ion 18-608(

2) is facially u nconstitutional because i t requires hospitalizations for all second-trimester abortions.

Section 18-608(2) requires that all second-trimester abortions occur in a hospital. I f the 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 phy sicians perform all second-trimester abor tions in hospitals. See Pla nned Parenthood Ass’n of Kansas City, Mo., Inc. v. Ashcroft
, 462 U .S. 476 (1983) ; C i ty o f Akron v

. Akron Center for Reproduc t i ve Health, Inc.
, 462 U.S. 416 (1983) (overturned on other g rounds). “[ S] uch a r equirementM C C O R M A C K V

. H E R

Z O G 22

unreasonably infring es upon a woman’s constitutional rig ht
to obtain a

n abortion.” Planned Parenthood Ass’n of Kansas C i ty, Mo., Inc.
, 462 U.S. at 482 (internal quotation ma r k s omitted).

Prosecuting Attorney Herz og a ttempts to disting uish the present case from this controlling Supreme Court pr ec e d ent by arg uing that both the ab s o l u te and percentag e terms o f second trimester a

b ortions in I daho are “quite small.” B etween 2007 a n d 2011, about 1.2 percent of abortions in I daho were performed during o r after the fourteenth week o f
preg n ancy and only about 21.5 percent of those abortions

were non-surg ical. B ut Herz og draws the court’s a ttention to irrelevant fig ures. The percentag e of non-s urg ical second trimester abortions is certainly small, but for “a larg e fraction of the cases in which [ the statute] is relevant,” r equired hospitaliz ation will operate as a substantial obstacle. Casey
, 505 U.S. at 895.

Herz og also asserts that D r. Hearn is n ot “competent professionally ” to provide medical abort i o n s outside of a hospital setting

. However, we th i nk that an inquiry into the “medical appropriatenes s” of Dr. Hearn’s proposed prescriptions of abortion p i l l s i s not properly p a rt of our analy sis, especially g iven the vag ueness of that phrase.

Therefore, the d istrict court d i d not err in finding § 18- 608(2) facially

unconstitutional.

4. S ection 18-608(

1) in conjunction with § 18-6 0 5 i s unconstitutionally vague.

S ection 18-608 outlines where certain abortions a re permitted. Specifically
, §18-608(1) requires abortions duringM C C O R M A C K V

. H E R

Z O G 23

the first trimest e r t o take p lace in a hospital, phy sician’s office, or clinic that is:

properly staffed and equipped for the
p e r f o r m a n c e o f s u c h p r o c e d u r es a n d respecting which the responsible phy sician o r p h y s i c i a n s h a v e m a d e s a t i s f a c t o r y

ar r a ng ements with o ne or more acute care hospitals within reasonable prox imity thereof providing for the prompt availability o f hospital care a s m a y be r equired due to complications or emerg encies that mig ht arise.

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

Section 18-605 establishes civil a nd criminal penalties for
persons who perform abortions other than as permitted by the remainder o f Title 18, Chapter 6 of the I d a ho Code. I n particular, § 18-605(3) states that the license d o r c ertified health c are provider must “ k n owing ly ” v i o late the statute to be g uilty of a felony

.

Herz og conte sts the district c ourt’s determination that § 18-608(1) is unconstitutionally v ag ue, arg uing that: (1) whether a medical office is “properly s taffed” a nd whether “ satisfactory arrang ements” with a hospital have been made “connote objectively d e t erminable facts,” a nd (2) the § 18 -6 0 5 e nforcement provisions require the alleg ed vi o l a tion to b e performed “knowing ly .” We are not persuaded.

“To avoid u nconstitutional vag ueness, an o r dinance must (1) define the offense with s u f ficient definiteness thatM C C O R M A C K V

. H E R

Z O G 24

o r d inary p eople can understand what conduct is prohibited ; and (2) e stablish standards to permit police to enforce the law in a non-arbitrary
, non-discriminatory manner.” Nunez
, 114 F .3d at 940. I f a statute subjec t s v i o l ators to criminal penalties, the need for cle a r d e finitions “is even more

ex a c ting

. ” Forbes v. Napolitano
, 236 F .3d 1 009, 101 1 ( 9 t h Cir

. 2 0 00). The Supreme Court has held that “a criminal
statute that fails to g ive a person of o rdinary intellig ence fair notice th at his contemplated conduct is forbidden by the
statute or is so indefinite that it encourag es arbitrary a nd

er ratic arrests and convictions is void for vag ueness.” Colautti v. Frankl i n , 439 U .S. 379, 390 (1979) (internal
q u o tation marks and c itations omitted). “[ W ] here the uncertainty induced by the statute threatens to inhibit the

ex e r cis e of constitutionally protected rig hts[ ,] ” the law is

even more likely to be f

ound unconstitutionally v ag ue. Id. at 391.

I n Gonzales v

. Carhart
, 550 U.S. 124, 147–48 (2007), the Supreme Court considered whether the Pa r t i a l

- B irth Abortion B an Act of 2 003, 18 U.S.C. § 1531 (2000 ed., Supp. I V), was

un co n stitutionally vag ue. The Act defines the unlawful abortion in ex plicit terms and includ es very specific “anatomical landmarks” to put abor t ion providers on notice

as to w hat ty

pe o f ab o r t ions are p r ohibited. G onzales
, 550 U.S. at 147–48. The Court found that the Act sets forth “relatively clear g u idelines as to prohibited c o n duct a nd
pr o v i d es o bjective criteria to evaluate w hether a doctor has performed a prohibited procedure[ ,]

. . . [ u] nlike the statutory lang uag e in Stenberg [v. Carhart , 530 U.S. 914 (2000)] that prohibited the delivery of a substantial portion o f the fetus.” Id. at 149 (internal quotation marks omitted).M C C O R M A C K V

. H E R

Z O G 25

Unlike the terms in the Act at issue in Gonzales
, the terms “properly ” and “satisfactory ,” as u s e d i n § 18-608(1), lack precise definition, and “subject[ ] phy sicians to sancti o ns based not on their own ob j ec t ive behavior, but on the subjective viewpoints of others.” Tucson W oman’s Clinic v

. Eden
, 379 F .3d 531, 555 (9th Cir. 2004) (internal quotation marks o mitted). Neither term is defined in the statute, nor a re they terms of art w ith specific definitions in the medical
contex t.

W e have found a statute unconstitut i o n a lly vag ue that required that patients “be treated with consideration, respect, and full recog nition of the patient’s dig nity and individuality ” b ecause “understanding s of w hat ‘ consideration,’ ‘respect
, ’ ‘dig nity ,’ and ‘individuality ’ mean a r e widely variable,

. . . [ making the statute too] vag ue and subjective f or providers to know how they should behave in o rder to comply
, as well a s too v ag ue to limit arbitrary enforcem e nt.” Id. at 554–55 (internal q u o tation marks o mitted). Here, the terms “properly ” and “satisfactory

” are simi larly subjective a nd open to multiple interpretations.

The district court noted that the dictionary definitions of the terms also are unhelpful in curing the statute’s v ag ueness. “Properly ” means “suitably
, fitly
, rig htly
, c orrectly

. ” W E B S T E R ’ S T H I R

D I N T ’ L D I C T I O

N A R Y 1818 (3d ed. 1976)). “Satisfactory

” means “sufficient to meet a condition o r oblig ation.” Id. at 2017. I n stead of providing cla r i t y , the definitions raise the same questions as the terms themselves:
proper, satisfactory
, fit, rig ht, or sufficient according to whom or what standard?

Unlike the specific “anatomical landmarks” in the statute at issue i n G o n zales
, § 18-608(1) fails to provide a specificM C C O R M A C K V

. H E R

Z O G 26

standard to measure o r d et ermine what is “proper” o r “satisfactor

y .” T he district c ourt correctly recog niz ed the “trap” of these imprecise terms: they “could we l l i m p ose criminal liability on activity that offends some people’s sense of what is ‘properly staffe d a n d e quipped’ or what
arrang ements a

re ‘satisfactory
, ’ but may appear to o t h e rs a s more than adequate.”

Moreo v e r , the scienter requirement in § 1 8-605(3) (a medical p rovider must “knowing ly violate[ ] the provision[ ] ”
to be g uilty o f a felony

), d o es not make the widely variable definitions of “properly

” and “satisfactory

” any less vag ue. B ecause the enforceme n t of the statute relies on “wholly subjective judg ments without statutory definitions,” a phy sician could arg ue that he believed he complied with § 18- 608(1). U

nited States v. W

illiams
, 553 U.S. 2 85, 306 (2008). Additio n a l l y , “this lack of clarity may o perate to inhibit [ a phy sician’s provision of leg al aborti o n services] because individuals will not know whether the ordinance allows their conduct, and may choose n ot to ex ercise their rig hts for fear of being criminally p u nished.” H unt v. City of Los Angeles
, 638 F .3d 703, 713 (9th Cir. 2011).

Herz og also a ttempts to import the “reasona b l e p h y s i cian”

s t a n dard from I daho’s medical practice liability statute (which is no t b e ing c halleng ed in this c ase) to arg ue that a standard of objective reasonableness for phy sicians g enerally applies to all instances of c ivil liability —including § 1 8-608. However, violators o f § 18-608 are not just subject to ci vil penalties
, b u t also to c riminal prosecution under § 1 8-605. And w hereas the leg islature definitively outlined a reasonable phy sician standard in the medical malpractice statute, it failed to do so in the abortion statute. W ithout clear lang uag e that
g ives phy sicians adequate notice of how to comply with theM C C O R M A C K V

. H E R

Z O G 27

statute, § 18-608(1), as inte r preted with § 18-605, is unconstitutionally vag ue. See Colautti
, 439 U .S. at 391 (finding a statute void for vag ueness “where the uncertainty induced by the statute threa t ens to inhibit the ex ercise o f

c o nstitutionally protected rig hts,” even where the law co u l d have some constitutional applications).

L astly
, Herz o g arg ues that if our court finds § 18-608(1) impermissibly vag ue, we shou l d sever the unconstitutional words from the statute pursuant to § 1 8 -616, the law’s severab i lity clause. The I daho Supreme Court has held that “when the unconstitutional portion of a statute is not integ ral

or indispensable, it will recog niz e and g ive effect to a severability c lause.” Simpson v. Cenarrusa , 944 P.2d 1372, 1377 (I daho 1997).

Assuming the terms “properly ” and “satisf

a c t ory ” a re severable, striking these words from the statute would not remedy the constitutional infirmities of the statute. Removing the ambig uous terms would result in the following lang uag e:

Abortions permitted by t h i s subsection shall only be lawful if and when pe r f o rm ed in a hospital or in a p hy sician’s r eg ular office or a clinic which office or clinic is

______ staffed and equipped for the performance of such
p r o c e d u r e s a n d r e s p e c t i n g w h i c h t h e responsible phy sician o r phy sicians have made

______ arrang ements w ith one or more acute care hospitals withi n reasonable
prox imity thereof providing f or the prompt availability o f hospital care as may be required d

ue to complications or emerg encies that mig ht arise.M C C O R M A C K V

. H E R

Z O G 28

The appropriate a moun t o f s taff and equipment for an abortion remains unclear, as there may be differing o p inions about what is sufficient. I t al s o i s u n clear what ty pes o f
arrang ements must be made with acute care hospital s t o comply with the statute. “ G iven the potential for harassment of abortion providers, it is p articularly important that enforcement of a

n y u n c onstitutionally v ag ue provisions o f the scheme b e enjoined.” Tucson W oman’s Clinic
, 379 F .3d at 554. Thus, t h e l a c k of definitive standards for p erforming leg al first trimester a

bortions c a u s e s § 18-608(1) to remain unconstitutionally

vag ue.

CONCLUSION

F or the foreg oing reasons, we affi r m t h e district court’s judg ment. McCormack’s c halleng e to § 18-606 is not moot because her claims fall under three e x c e p tions to the

m o o t ness doctrine: (a) “voluntary cessation,” (b) “collateral leg al consequences,” and (c) “capable of repetition, y et evading re v i e w

. ” McCormack has standing based on the ling ering risk of prosecution under § 18-606. Dr. Hearn has standing based on his intention to provide medical abortions throug h the second trimester o u t s i de a clinical or hospital setting and based on h is p ossible prosecution under § 18-505 and § 1 8 -608. Section 18-505 is fa cially unconstitutional because it categ orically bans some abortions before viability

. Section 18-608(2) is facially unconstitutional b e cause it places an u ndue burden on a woman’s ability to obtain an abortion by requiring hospitaliz ations for all second-trimester abortions. Section 18-608(1) in conjunction with § 1 8-605 is unconstitutionally

vag ue.

AF F IRMED.