FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JENNIE LINN MCCORMACK, 

Plaintiff-Appellee,

No. 11-36010

v.  D.C. No.

MARK L. HIEDEMAN, Bannock 4:11-cv-00433-BLW

County Prosecuting Attorney,

Defendant-Appellant. 

JENNIE LINN MCCORMACK, 

Plaintiff-Appellant, No. 11-36015

v. D.C. No. 

MARK L. HIEDEMAN, Bannock 4:11-cv-00433-BLW

County Prosecuting Attorney, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted

July 9, 2012—Portland, Oregon

Filed September 11, 2012

10913
Before: Betty B. Fletcher and Harry Pregerson,

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 of Louisiana, sitting by designation.

10914 MCCORMACK v. HIEDEMAN
COUNSEL

Clay R. Smith, Deputy Attorney General, Boise, Idaho, for

the defendant-appellant and cross-appellee.

Richard A. Hearn, Racine, Olson, Nye, Budge & Bailey,

Chartered, Pocatello, Idaho, for the plaintiff-appellee and

cross-appellant.

Kathleen M. O’Sullivan, Perkins Coie, Seattle, Washington,

for amici curiae Legal Voice, Center for Reproductive Rights,

and National Advocates for Pregnant Women. 

10916 MCCORMACK v. HIEDEMAN
OPINION

PREGERSON, Circuit Judge:

On May 18, 2011, Mark Hiedeman, the Bannock County,

Idaho prosecuting attorney, filed a felony criminal complaint

in the district court of the State of Idaho, in and for Bannock

County against Jennie Linn McCormack. The complaint

charged McCormack with “the public offense of Unlawful

Abortion, Idaho Code § 18-606,” which makes it a felony for

any woman to undergo an abortion in a manner not authorized

by statute. As a result, McCormack faced the possibility of up

to five years imprisonment for allegedly violating Idaho Code

§ 18-606, which specifically targets pregnant women. Idaho

Code § 18-606(2). On September 7, 2011, the Idaho state district court dismissed the criminal complaint without prejudice.

Prosecuting attorney Hiedeman has not determined whether

he will re-file the criminal complaint. 

On September 24, 2011, McCormack filed in the U.S. District Court for the District of Idaho a class action lawsuit

against the prosecuting attorney, Hiedeman. The suit charges,

among other things, that Idaho Code § 18-606 violates various

provisions of the United States Constitution. The district court

issued a preliminary injunction, restraining Hiedeman from

enforcing Idaho Code §§ 18-606 and 18-608(1). Hiedeman

appeals, arguing that (1) the federal district court erred in

determining that McCormack would likely succeed on the

merits; and (2) the injunction is overbroad. McCormack cross

appeals, arguing that the federal district court should have

enjoined enforcement of Idaho Code § 18-606 in conjunction

with both §§ 18-608(1) and 18-608(2). Additionally, McCormack argues that she has standing to challenge the enforcement of Chapter 5, the Pain-Capable Unborn Child Protection

Act (including Idaho Code §§ 18-505 – 18-507).

For the reasons set forth below, we affirm in part and

reverse in part the district court’s grant of a preliminary

injunction.

MCCORMACK v. HIEDEMAN 10917
A. Background

McCormack is a resident of Bannock County, Idaho. In

2010, McCormack was unmarried, had three children (ages 2,

11, and 18), and was unemployed. In 2010, McCormack had

no source of income other than child support payments which

were between $200 and $250 per month. 

In the fall of 2010, McCormack was pregnant and sought

an abortion. She knew that abortions were not available in

southeast Idaho. In fact, there are no licensed health care providers offering abortion services in the eight southeastern

Idaho counties. McCormack knew that abortions are available

in Salt Lake City, Utah, but at costs between $400 – $2,000

depending on how far along the pregnancy is.1

But McCormack found out that abortions could be performed in Idaho using medications, rather than surgery and

that the cost of such medical abortions was significantly less

than the cost of a surgical abortion like those offered in Salt

Lake City, Utah. She further learned that medications inducing abortions had been approved for use in the U.S. and could

be purchased over the internet. 

In McCormack’s complaint, she states that she “considered

terminating her pregnancy . . . by ingesting one or more medications she reasonably believed to have been prescribed by a

health care provider practicing outside Bannock County,

Idaho.” During the hearing before the district court on

McCormack’s motion for a preliminary injunction, McCormack’s attorney reiterated that the medications were pre1

It is about 138 miles from Bannock County, Idaho to Salt Lake City,

Utah. This Court takes “judicial notice of a Google map and satellite

image as a ‘source[ ] whose accuracy cannot reasonably be questioned,’ ”

at least for determining the approximate distance from Idaho to Utah. See

United States v. Perea-Rey, 680 F.3d 1179, 1182 n.1 (9th Cir. 2012) (quoting Fed. R. Evid. 201(b)). 

10918 MCCORMACK v. HIEDEMAN
scribed by a physician. McCormack’s attorney stated that

McCormack went to “a provider over the [i]nternet.” 

On May 18, 2011, Hiedeman, in his capacity as Bannock

County prosecuting attorney, filed a criminal complaint in the

district court of the State of Idaho, in and for Bannock

County, charging McCormack with the felony of “the public

offense of Unlawful Abortion, Idaho Code § 18-606.” The

criminal complaint alleged: 

That the said JENNIE LINN MCCORMACK, in the

County of Bannock, State of Idaho, on the 24th day

of December, 2010, did induce or knowingly aid in

the production or performance of an abortion by

knowingly submitting to an abortion and/or soliciting of another, for herself, the production of an abortion; and/or who purposely terminated her own

pregnancy other than by live birth.2

A magistrate judge dismissed the criminal complaint without

prejudice on September 7, 2011. Hiedeman has not determined whether to re-file the criminal complaint. 

McCormack does not want to have additional children. If

she became pregnant, she would seek an abortion again.

Because there are no providers of medical abortions in southeast Idaho, McCormack would need to seek the assistance of

providers of abortion services outside of southeast Idaho.

B. Statutes 

This case requires the interpretation of three Idaho abortion

statutes: Idaho Code § 18-606, Idaho Code § 18-608, and

2The criminal complaint does not allege which trimester McCormack

was in when she had the alleged abortion. It also does not state the estimated age of the aborted fetus. Further, it does not specify which statute

in conjunction with § 18-606 the state was prosecuting McCormack under.

MCCORMACK v. HIEDEMAN 10919
Idaho Code § 18-505. We summarize the substance of each

statute. 

1. Chapter Six: Idaho Code § 18-606

Idaho Code § 18-606(2) makes it a felony, except as permitted by the remainder of Title 8, Chapter 6 of the Idaho

Code, for “[e]very woman who knowingly submits to an abortion or solicits of another, for herself, the production of an

abortion, or who purposely terminates her own pregnancy

otherwise than by a live birth . . . .” Anyone deemed guilty

of violating § 18-606 “shall be fined not to exceed five thousand dollars ($5,000) and/or imprisoned in the state prison for

not less than one (1) and not more than five (5) years.” Idaho

Code § 18-606(2). 

2. Chapter Six: Idaho Code § 18-608

Idaho Code § 18-608, entitled “Certain abortions permitted

— Conditions and guidelines” provides the statutory content

for the limitation on the applicability of Idaho Code § 18-606.

Under § 18-608(1), a woman may terminate her pregnancy

during the first trimester if the abortion is performed by a

physician 

in a hospital or in a physician’s regular office or a

clinic which office or clinic 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.

Under § 18-608(2), a woman may terminate her pregnancy

during the second trimester of pregnancy, but the abortion

10920 MCCORMACK v. HIEDEMAN
must be “performed in a hospital and [must be], in the judgment of the attending physician, in the best medical interest

of such pregnant woman.”

3. Chapter Five, the Pain-Capable Unborn Child Protection Act: Idaho Code § 18-505 – § 18-507

Idaho Code § 18-505, or the Pain-Capable Unborn Child

Protection Act (“PUCPA”), categorically bans nontherapeutic abortions at and after twenty weeks. “Any person

who intentionally or recklessly performs or attempts to perform an abortion in violation of the provisions of section 18-

505, Idaho Code, is guilty of a felony.” Idaho Code § 18-507.

The Act further states “No penalty shall be assessed against

the woman upon whom the abortion is performed or

attempted to be performed.” Id. 

The Act also provides civil remedies in the form of actual

damages to “[a]ny woman upon whom an abortion has been

performed in violation of the pain-capable unborn child protection act or the father of the unborn child . . . .” Idaho Code

§ 18-508(1). The Act also permits certain persons, including

a prosecuting attorney, to file an action for injunctive relief

against an abortion provider who violates § 18-505. Idaho

Code § 18-508(2). 

C. Procedural History 

On September 16, 2011, McCormack filed her class action

complaint against Defendant Mark L. Hiedeman, in his capacity as Bannock County prosecuting attorney. As part of her

complaint, she sought declaratory relief, and preliminary and

permanent injunctive relief. 

McCormack simultaneously filed a request for a temporary

restraining order under Fed. R. Civ. P. 65(b). The parties stipulated to the entry of the temporary restraining order, and the

district court approved the stipulation on October 7, 2011,

MCCORMACK v. HIEDEMAN 10921
consistent with the memorandum decision entered on September 23, 2011. The temporary restraining order expired on

October 21, 2011. On November 14, 2011, the district court

issued a preliminary injunction that enjoined Hiedeman “from

enforcing Idaho Code §§ 18-606 and 18-608(1) for those reasons and on those grounds set forth in the Memorandum Decision and Order entered on September 23, 2011.” Hiedeman

filed a timely notice of appeal and McCormack crossappealed. 

In this case, Hiedeman asserts that (1) the district court

applied the incorrect legal standard for granting a preliminary

injunction, and (2) based its decision on clearly erroneous

facts. Additionally, Hiedeman asserts that the preliminary

injunction is overbroad to the extent that it grants relief

beyond McCormack. In her cross-appeal, McCormack contends that the district court should have enjoined enforcement

of Idaho Code § 18-606 in conjunction with both §§ 18-

608(1) and 18-608(2). Additionally, McCormack asserts that

she has standing to challenge the enforcement of Chapter 5,

the Pain-Capable Unborn Child Protection Act (including

Idaho Code §§ 18-505 – 18-507). 

JURISDICTION 

This court has jurisdiction pursuant to 28 U.S.C.

§ 1292(a)(1).

STANDARD OF REVIEW

We review the district court’s grant of a preliminary injunction for abuse of discretion. Am. Trucking Ass’ns, Inc. v. City

of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). A district court abuses its discretion if it bases its decision on an

erroneous legal standard or clearly erroneous findings of fact.

Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir.

2009) (citation omitted). Application of an incorrect legal

standard for preliminary relief or with regard to the underly10922 MCCORMACK v. HIEDEMAN
ing issues in the case are grounds for reversal. See Earth

Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1298 (9th Cir.

2003); Sports Form, Inc. v. United Press Int’l, Inc., 686 F.2d

750, 752 (9th Cir. 1982). The district court’s interpretation of

underlying legal principles is subject to de novo review. Sw.

Voter Reg. Educ. Project v. Shelley, 344 F.3d 914, 918 (9th

Cir. 2003). 

DISCUSSION

I. The district court did not abuse its discretion in determining that McCormack would likely succeed with

her facial constitutional challenges to Idaho Code

§§ 18-606 and 18-608(1). 

“A plaintiff seeking a preliminary injunction must establish

that [s]he is likely to succeed on the merits, that [s]he is likely

to suffer irreparable harm in the absence of preliminary relief,

that the balance of equities tips in [her] favor, and that an

injunction is in the public interest.” Winter v. Natural

Resources Defense Council, Inc., 555 U.S. 7, 20 (2008).

This case turns on the first factor—whether McCormack

established that she was likely to succeed on the merits.

Hiedeman contends that the U.S. District Court’s conclusion

concerning the probability of success is based on incorrect

legal analysis and unsupported factual determinations. Hiedeman is wrong on both counts.

1. The U.S. District Court did not employ an erroneous

legal standard.

The district court rested its decision to grant the preliminary injunction on the “undue burden test” set out in Planned

Parenthood v. Casey, 505 U.S. 833 (1992). Prosecuting attorney Hiedeman does not argue that the U.S. District Court’s

use of Casey is an erroneous legal standard. Instead, Hiedeman argues that “[t]he rationale for [abortion] statutes — the

MCCORMACK v. HIEDEMAN 10923
woman’s health and safety — applies with no less force

where the woman rather than another person performs the

abortion.” Thus, he argues that the U.S. District Court erred

in determining that McCormack was likely to succeed on the

merits. We disagree. 

a. History of Abortion Statutes.

Historically, laws regulating abortion have sought to further

the state’s interest in protecting the health and welfare of

pregnant women, who alone bear the burden and risks of

pregnancies. With this interest in mind, abortion statutes were

first enacted to protect pregnant females from third parties

providing dangerous abortions. See Roe v. Wade, 410 U.S.

113, 151 (1973) (recognizing that, the purpose of abortion

“laws in the late 19th and early 20th centuries did focus on the

State’s interest in protecting the woman’s health rather than

in preserving the embryo and fetus.”); Abele v. Markle, 342

F. Supp. 800, 806 (D.C. Conn. 1972) (“abortions performed

before [1867], even under the best of then known medical

practices, created grave risks for the health and life of the

mother. There can be no doubt that this was an evil known to

and appreciated by the Nineteenth Century legislators.”);

State v. Ashley, 701 So. 2d 338, 340 (Fla. 1997) (“At common

law, while a third party could be held criminally liable for

causing injury or death to a fetus, the pregnant woman could

not be.” (citing State v. Carey, 76 Conn. 342 (1904) (differentiating between those actions by a third party and those taken

upon oneself))). 

As a result, abortion statutes have traditionally criminalized

the behavior of third parties to protect the health of pregnant

women. See id. As one court noted: 

The obvious purpose [of the abortion statute enacted

in 1846] was to protect the pregnant woman. When

one remembers that the passing of the statute predated the advent of antiseptic surgery, the Legisla10924 MCCORMACK v. HIEDEMAN
ture’s wisdom in making criminal any invasion of

the woman’s person, save when necessary to preserve her life, is unchallengeable. 

People v. Nixon, 201 N.W. 2d 635, 639 (Mich. App. 1972);

see also Gaines v. Wolcott, 167 S.E. 2d 366, 370 (Ga. App.

1969) (recognizing that, “the appalling, unsanitary and unprofessional conditions under which . . . illegal operations are in

fact performed warrant the protection of the law to women.”).

[1] Most modern state criminal statutes continue to apply

criminal liability to third parties who perform abortion in a

manner not proscribed by the statute. These statutes, known

as physician-only statutes, impose criminal liability on anyone

other than a licensed physician from performing abortions.

But many of these same criminal statutes expressly exempt

women from criminal liability for obtaining an abortion and

do not hold them liable for actions or inactions that affect

their pregnancy outcomes.3 When state statutes do not

3

See e.g., Alaska Stat. § 11.41.289 (liability for “assault of an unborn

child” does not apply to actions “committed by a pregnant woman against

herself and her own unborn child”); Ark. Code Ann. §§ 5-61-101(c), 5-61-

102(c) (“Nothing in this section shall be construed to allow the charging

or conviction of a woman with any criminal offense in the death of her

own unborn child in utero”); Fla. Stat. § 782.36 (“A patient receiving a

partial-birth-abortion procedure may not be prosecuted under this act.”);

720 Ill. Comp. Stat. 5/9-1.2(b) (criminal liability for intentional homicide

of an unborn child does not apply to “the pregnant woman whose unborn

child is killed”); Kan. Stat. Ann. § 65-6703(e) (“A woman upon whom an

abortion is performed shall not be prosecuted under this section . . . .”);

Ky. Rev. Stat. Ann. § 507A.010(3) (“nothing in this chapter shall apply to

any acts of a pregnant woman that caused the death of her unborn child”);

La. Rev. Stat. Ann. § 14:87A.(2) (penalties for criminalized abortions not

applicable to pregnant women having abortions); Minn. Stat. § 609.266

(excluding the “pregnant woman” from liability for “crimes against

unborn children”); Neb. Rev. Stat. § 28-335 (providing “[n]o civil or criminal penalty . . . against the patient upon whom the abortion is performed”); Ohio Rev. Code Ann. § 2919.17(I)(expressly excluding women

from liability for post-viability abortions); 18 Pa. Cons. Stat. Ann. § 2608

MCCORMACK v. HIEDEMAN 10925
expressly exempt pregnant women, state courts interpreting

them have concluded that pregnant women are exempt from

criminal prosecution.4

b. The Supreme Court has not authorized the criminal prosecution of women for seeking abortion

care.

[2] Consistent with this history, there is no Supreme Court

precedent that recognizes or suggests that third party criminal

liability may extend to pregnant women who obtain an abortion in a manner inconsistent with state abortion statutes. Nevertheless, prosecuting attorney Hiedeman asserts that under

(exempting pregnant women from liability “in regards to crimes against

her unborn child”); Tex. Penal Code Ann. § 19.06(1) (exempting the

woman from liability for “death of an unborn child”); Utah Code Ann.

§ 76-7-314.5(2) (“A woman is not criminally liable for (a) seeking to

obtain, or obtaining, an abortion that is permitted by this part; or (b) a physician’s failure to comply [with specified statutes.]”); Vt. Stat. Ann. tit. 13

§ 101 (“However, the woman whose miscarriage is caused or attempted

shall not be liable to the penalties prescribed by this section.”); Wis. Stat.

Ann. § 940.13 (providing no fine or imprisonment for a woman who

obtains an abortion or violates any provision of an abortion statute). 

4

 See e.g., State v. Ashley, 701 So. 2d 338, 340 (Fla. 1997) (holding that

a woman possessed immunity from criminal prosecution “for causing

injury or death to [her] fetus”); State v. Aiwohi, 123 P.3d 1210, 1224

(Haw. 2005) (holding that, the definition of “person” in the Hawaii manslaughter statute did not include a fetus, and thus did not apply when a

woman caused the death of her fetus by smoking crystal methamphetamine); Hillman v. State, 503 S.E. 2d 610, 611 (Ga. App. 1998) (holding

that the Georgia criminal abortion statute does not criminalize a pregnant

woman’s actions in securing an abortion, regardless of the means used);

State v. Barnett, 437 P.2d 821, 822 (Or. 1968) (recognizing that a reading

of the Oregon criminal statute “indicates that the acts prohibited are those

which are performed upon the mother rather than any action taken by

her”). Although these cases generally find that a woman cannot be held

criminally liable, their decisions rest primarily on the state court’s interpretation of state criminal law, and they did not involve an “undue burden” analysis. 

10926 MCCORMACK v. HIEDEMAN
current precedent physician-only provisions in abortion statutes can be applied with equal force to pregnant women who

fail to comply with state abortion statutes. He argues that “[a]

State . . . has an interest in strict adherence to physician-only

requirements and need not, as a constitutional matter, carve

out an enforcement exception for women who take it upon

themselves to self-abort.” Prosecuting attorney Hiedeman

mistakenly relies on Roe, 410 U.S. 113, Casey, 505 U.S. 833,

Connecticut v. Menillo, 423 U.S. 9 (1975) (per curiam), and

Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam), to

argue that the Supreme Court has decided this issue, and thus,

McCormack is not likely to succeed on her claims. 

First, Hiedeman asserts that under Roe, a state may constitutionally prohibit anyone other than a licensed physician

from performing an abortion. In Roe, the Supreme Court recognized that the right to personal privacy under the Due Process Clause of the Fourteenth Amendment is broad enough to

encompass a woman’s decision to have an abortion. 410 U.S.

at 153-54. Roe recognized, however, that there are some limitations to this right because that right must be balanced

against the state’s important and legitimate interest in protecting prenatal life and protecting women’s health. Id. at 162.

Hiedeman cites the following passage from Roe to support his

argument that McCormack can be held criminally liable for

failing to comply with Idaho’s abortion statutes: 

The State has a legitimate interest in seeing to it that

abortion, like any other medical procedure, is performed under circumstances that insure maximum

safety for the patient. This interest obviously extends

at least to the performing physician and his staff, to

the facilities involved, to the availability of aftercare,

and to adequate provision for any complication or

emergency that might arise. 

Id. at 150 (emphasis added). Further, Hiedeman notes that

Roe held that “[t]he State may define the term ‘physician’ . . .

MCCORMACK v. HIEDEMAN 10927
to mean only a physician currently licensed by the State, and

may proscribe any abortion by a person who is not a physician as so defined.” Id. at 165. Hiedeman further argues that

Casey did not disturb this long-standing Supreme Court precedent. 505 U.S. at 856 (recognizing “the right of the woman

to choose to have an abortion before viability and to obtain it

without interference from the State,” but noting that, “[a]ll

abortion regulations interfere to some degree with a woman’s

ability to decide whether to terminate her pregnancy,” thus the

constitutionally critical concern is whether the regulations “in

[a] real sense deprive[ ] women of the ultimate decision”). 

Hiedeman’s attempt to equate these Supreme Court principles with the Idaho statute at issue in this case is unpersuasive. These principles, embraced by the Supreme Court,

recognize that women’s health is an important interest for the

state and one that is considered in crafting abortion statutes.

These principles, however, in no way recognize, permit, or

stand for the proposition that a state may prosecute a pregnant

woman who seeks an abortion in a manner that may not be

authorized by the state’s statute, including when a pregnant

woman receives physician- prescribed medication to terminate her pregnancy. Hiedeman’s reading of Roe and Casey

expands these Supreme Court holdings to reach an unintended

result. 

Hiedeman’s reliance on Connecticut v. Menillo is equally

unpersuasive. In Menillo, the Supreme Court reinstated the

conviction of Patrick Menillo for attempting to procure an

abortion. Menillo, 423 U.S. at 9. “Menillo, a nonphysician

with no medical training, performed an abortion upon a

female in normal good health for a $400 fee.” State v.

Menillo, 368 A.2d 136, 137 (Conn. 1976). A jury found

Menillo guilty under a Connecticut statute, which prescribes

that “any person who gives or administers to any woman, or

advises or causes her to take or use anything . . . , with the

intent to procure upon her a miscarriage or abortion, unless

the same is necessary to preserve her life or that of her unborn

10928 MCCORMACK v. HIEDEMAN
child, shall be fined . . . or imprisoned.” Menillo, 423 U.S. at

10 n.1. The Connecticut Supreme Court overturned Menillo’s

conviction, holding that the statute was “null and void” under

federal law. Id. at 9. The U.S. Supreme Court vacated and

reinstated Menillo’s conviction. Id. The U.S. Supreme Court

stated that Roe supported the “continued enforceablity of

criminal abortion statutes against nonphysicians.” Id. at 10.

The Court explained: 

Roe teaches that a State cannot restrict a decision by

a woman, with the advice of her physician, to terminate her pregnancy during the first trimester because

neither its interest in maternal health nor its interest

in the potential life of the fetus is sufficiently great

at that stage. But the insufficiency of the State’s

interest in maternal health is predicated upon the first

trimester abortion’s being as safe for the woman as

normal childbirth at term, and that predicate holds

true only if the abortion is performed by medically

competent personnel under conditions insuring maximum safety for the woman. . . . Even during the first

trimester of the pregnancy, therefore, prosecutions

for abortions conducted by nonphysicians infringe

upon no realm of personal privacy secured by the

Constitution against state interference.

Id. at 10-11. 

Like Roe, Menillo also does not discuss the issue presented

here: whether the state can impose criminal liability on pregnant women for failing to abide by the state’s abortion statutes. Menillo does not uphold the prosecution of pregnant

women who undergo abortions in a manner not prescribed by

statute. The statute at issue in Menillo was directed only

against the person who commits or attempts to commit the act

on the pregnant woman (i.e., it criminalized the actions of a

third party—a nonphysician). See id. at 10 n.1 (“Any person

who gives or administers to any woman . . . .”) (emphasis

MCCORMACK v. HIEDEMAN 10929
added). Thus, Menillo stands for the unremarkable proposition that states may prosecute unlicensed providers of unsafe,

“back-alley” abortions.

Prosecuting attorney Hiedeman also erroneously relies on

the more recent case of Mazurek v. Armstrong, 520 U.S. 968

(1997) (per curiam). The Montana statute at issue in Mazurek

was aimed at stopping a physician assistant, who had legally

provided abortion services under the supervision of a physician, from continuing to provide that care. Armstrong v.

Mazurek, 94 F.3d 566, 566-67 (9th Cir. 1996). This court,

relying on Casey, held that the appellants in Mazurek had

demonstrated a “fair chance of success on the merits.” Id. at

568. The question before the Supreme Court in Mazurek was

whether a state could bar medical professionals other than

physicians from providing abortion services. Mazurek v. Armstrong, 520 U.S. 968, 969-72 (1997). Mazurek did not involve

an attempt to prosecute a woman for seeking a pre-viability

abortion. Consequently, like Hiedeman’s reliance on Menillo,

Hiedeman’s reliance on Mazurek is unavailing.

[3] Here, Idaho Code § 18-606(2) explicitly makes it a felony, for “[e]very woman who knowingly submits to an abortion or solicits of another, for herself, the production of an

abortion, or who purposely terminates her own pregnancy

otherwise than by live birth” in a manner inconsistent with

Idaho’s abortion statutes. Idaho Code § 18-606(2), which

criminalizes the conduct of pregnant women—as opposed to

the conduct of a third-party performing the abortion—is, as

described above, different from any matter the U.S. Supreme

Court or this court has considered since Roe was handed

down. For the reasons explained below, it is likely that

McCormack will succeed on the merits because § 18-606(2)

imposes an undue burden on a woman’s ability to terminate

her pregnancy. 

10930 MCCORMACK v. HIEDEMAN
c. The district court did not err in determining that

McCormack is likely to succeed on the merits.

The district court concluded that under Casey’s “undue burden” test, McCormack established “that Idaho Code § 18-606

places an undue burden on women’s decision to choose a previability abortion5

 because it[ ] subjects women seeking abortions in Idaho to criminal prosecution if those women fail to

ensure that their abortion providers comply with the requirements of Idaho Code § 18-608.” We agree with the district

court that at this stage, Idaho Code § 18-606 places an undue

burden on women’s decision to terminate a pre-viability pregnancy. 

Although women have a Fourteenth Amendment right to

terminate a pre-viability pregnancy, that right has some limitations. See Casey, 505 U.S. at 895. Women challenging an

abortion statute must demonstrate that the challenged abortion

statute places an “undue burden” on a woman’s ability to

decide whether to terminate her pregnancy. Id. at 874. “A

finding of undue burden is a shorthand for the conclusion that

a state regulation has the purpose or effect of placing a sub5Casey recognized “the right of the woman to choose to have an abortion before viability and to obtain it without interference from the State.”

505 U.S. at 846. Viability, according to Roe, “is usually placed at about

seven months (28 weeks) but may occur earlier, even at 24 weeks.” Roe,

410 U.S. at 160. Viability is a critical stage in a pregnancy because it is

at that time that “the fetus then presumably has the capability of meaningful life outside the mother’s womb.” Id. at 163. Subsequent to Roe, the

Court in Planned Parenthood of Central Missouri v. Danforth, 428 U.S.

52, 63-64 (1976), affirmed that view but clarified that viability is “flexib-

[le]” and ultimately a “matter of medical judgment, skill, and technical

ability.” This is because the “time when viability is achieved may vary

with each pregnancy,” and thus, a “determination of whether a particular

fetus is viable is, and must be, a matter for the judgment of the responsible

attending physician.” Id. at 64. Thus, it is “not the proper function of the

legislature or the courts to place viability . . . at a specific point in the gestation period.” Id.

MCCORMACK v. HIEDEMAN 10931
stantial obstacle in the path of a woman seeking an abortion

of a nonviable fetus.” Id. at 877. 

[4] Under Casey, the challenged Idaho abortion statute,

§ 18-606, constitutes a substantial obstacle in the path of

women seeking an abortion of a nonviable fetus. Under Idaho

Code § 18-606, “[e]very woman who knowingly submits to

an abortion or solicits of another, for herself, the production

of an abortion, or who purposely terminates her own pregnancy otherwise than by a live birth” is subject to felony

charges, unless the abortion was performed as permitted by

the remainder of Title 8, Chapter 6 of the Idaho Code, including Idaho Code § 18-604 through 18-615. A pregnant woman

who violates this statute is subject to the possibility of up to

five years imprisonment. Idaho Code § 18-606(2). The

remainder of Chapter 6 details the manner in which a woman

in Idaho may obtain a lawful abortion.6

[5] Chapter 6 puts an undue burden on women seeking

abortions by requiring them to police their provider’s compliance with Idaho’s regulations. If a woman terminates her

pregnancy during the first trimester but fails to ask the physician whether the office has made “satisfactory arrangements

with one or more acute care hospitals within reasonable prox6Under § 18-608(1), a woman may terminate her pregnancy during the

first trimester if and when the abortion is performed by a physician 

in a hospital or in a physician’s regular office or a clinic which

office or clinic 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. 

Under § 18-608(2), a woman may terminate her pregnancy during the

second trimester of pregnancy, but it must be “performed in a hospital and

is, in the judgment of the attending physician, in the best medical interest

of such pregnant woman.” 

10932 MCCORMACK v. HIEDEMAN
imity thereof providing for the prompt availability of hospital

care as may be required due to complications or emergencies

that might arise,” she would be subject to a felony charge if

the physician has not made such arrangements. Idaho Code

§ 18-608(1). If a woman finds a doctor who provides abortions during the second trimester of a woman’s pregnancy, but

the doctor fails to tell the pregnant woman that the abortion

will be performed in a clinic as opposed to a hospital, the

pregnant woman would be subject to felony charges. Idaho

Code § 18-608(2). Or, as is the case here, if a woman elects

to take physician prescribed pills obtained over the internet to

end her pregnancy, which is not authorized by statute, she is

subject to felony charges. Idaho Code §§ 18-608(1)-18-

608(3). 

There can be no doubt that requiring women to explore the

intricacies of state abortion statutes to ensure that they and

their provider act within the Idaho abortion statute framework, results in an “undue burden” on a woman seeking an

abortion of a nonviable fetus.7 Under this Idaho statute, a

pregnant woman in McCormack’s position has three options:

(1) carefully read the Idaho abortion statutes to ensure that she

and her provider are in compliance with the Idaho laws to

avoid felony prosecution; (2) violate the law either knowingly

or unknowingly in an attempt to obtain an abortion; or (3)

refrain altogether from exercising her right to choose an abortion. 

7Because McCormack has established that she will likely succeed on the

merits, we do not discuss whether “there is a serious question going to the

merits.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th

Cir. 2011). As simply a reconfiguration of the four-element test in Winter,

555 U.S. at 20, the “sliding scale” approach to preliminary injunctions

remains valid: “ ‘A preliminary injunction is appropriate when a plaintiff

. . . demonstrates that serious questions going to the merits were raised and

the balance of hardships tips sharply in the plaintiff’s favor.’ ” Alliance for

Wild Rockies, 632 F.3d at 1134-35 (quoting Lands Council v. McNair, 537

F.3d 981, 986 (9th Cir. 2008) (en banc)). Given that McCormack has demonstrated a likelihood of success on the merits, McCormack would also

succeed under this lesser standard. 

MCCORMACK v. HIEDEMAN 10933
This Idaho statute heaps yet another substantial obstacle in

the already overburdened path that McCormack and pregnant

women like her face when deciding whether to obtain an

abortion. For many women, the decision whether to have an

abortion is a difficult one involving the consideration of

weighty ethical, moral, financial, and other considerations.8

Gonzales v. Carhart, 550 U.S. 124, 184 n.7 (2007) (Ginsburg,

J., dissenting); see also Thomas D. Kerenyi et al., Reasons for

Delayed Abortion: Results of Four Hundred Interviews, 117

Am. J. of Obstetrics & Gynecology 299 (1973). Among other

things, women must contemplate whether they are ready for

a child or another child, including considering whether that

child conforms with plans for future education and career

goals. Lawrence B. Finer et al., Reasons U.S. Women Have

Abortions: Quantitative and Qualitative Perspectives, 37

Persp. on Sexual and Reprod. Health 110, 113 (2005) (noting

that a quarter of women cite that they are not ready for a child

or another child as one of the most important reasons for not

having a child). Additionally, women often take into account

the perspective of their family members. See Aida Torres &

8The mental anguish discussed here should not be confused with the

mental health issues that allegedly arise after a woman has an abortion.

Numerous medical studies have denounced any link between having an

abortion and later mental illnesses. See Carhart, 550 U.S. at 184 n. 7 (Ginsburg, J., dissenting) (noting “ ‘neither the weight of the scientific evidence to date nor the observable reality of 33 years of legal abortion in the

United States comports with the idea that having an abortion is any more

dangerous to a woman’s long-term mental health than delivering and parenting a child that she did not intend to have’ ” (quoting Susan A. Cohen,

Abortion and Mental Health: Myths and Realities, 9 Guttmacher Policy

Rev. 8 (2006))); see also Nancy E.Adler et al., Psychological Responses

After Abortion, 248 Sci. 41 (1990); American Psychological Association,

Report of the APA Task Force on Mental Health and Abortion 4 (2008),

available at http://www.apa.org/pi/women/programs/abortion/mentalhealth.pdf (concluding that “[t]he best scientific evidence published indicates that among adult women who have an unplanned pregnancy the relative risk of mental health problems is no greater if they have a single

elective first-trimester abortion than if they deliver that pregnancy”)

(emphasis omitted). 

10934 MCCORMACK v. HIEDEMAN
Jacqueline D. Forrest, Why do Women Have Abortions?, 20

Fam. Plan. Persp. 169, 176 (1988) (concluding that more than

20 percent of women “chose to have an abortion at least in

part because their husband or partner wanted them to” and

more than 25 percent of minors were influenced by their parents’ wishes). 

Further, McCormack and other women in her position,

have to grapple with the cost of the abortion itself as well as

the long-term financial implications of not having one. See

U.S. Dep’t of Agric., Expenditures on Children by Families,

at iv (2012) (finding that for a two-child, husband-wife family, annual expenses ranged from $8,760 to $9,970, on average for households with before tax income less than $59,410

and that the financial cost of having a child “generally

increase[s] with the age of the child”). Because they do not

have the financial wherewithal to confirm suspected pregnancies, low-income women are often forced to wait until later in

their pregnancies to obtain an abortion. Lawrence B. Finer et

al., Timing of Steps and Reasons for Delays in Obtaining

Abortions in the United States, 74 Contraception 334, 343

(2006) (hereinafter Timing of Steps) (finding “[l]ower-income

women typically take more time to confirm a suspected pregnancy, which could relate to the cost of a home pregnancy test

and the difficulty in getting a test from a clinic or a doctor.”);

see also Diana G. Foster et al., Predictors of Delay in Each

Step Leading to an Abortion, 77 Contraception 289, 292

(2008) (finding that many women report being delayed by

financial factors). Delayed confirmation compounds the

financial difficulties, as the cost of abortion services increases

throughout the gestational period. 

Many women, like McCormack, must travel long distances

to the closest abortion provider. See Casey, 505 U.S. at 885-

86.9 This requires a pregnant woman take time to miss work,

9Eighty-seven percent of all counties in the United States are without an

abortion provider. Guttmacher Institute, In Brief: Facts on Induced AborMCCORMACK v. HIEDEMAN 10935
find childcare, make arrangements for travel to and from the

hospital and/or clinic, and to possibly make arrangements to

stay overnight to satisfy the 24-hour requirement. See id. at

n.9 (Blackmun, J., concurring). In fact, this has been shown

to be a significant factor when a woman delays an abortion,

and low-income women are more likely to have this problem.

Timing of Steps, at 343. Once at the clinic, pregnant women

may have to further manage “the harassment and hostility of

antiabortion protestors demonstrating outside a clinic.” Casey,

505 U.S. at 885-86 (citation omitted); see Rachel K. Jones &

Kathryn Kooistra, Abortion Incidence and Access to Services

in the United States, 2008, 43 Persp. on Sexual and Reprod.

Health 41, 48 (2011) (finding that 57% of nonhospital providers experienced antiabortion harassment in 2008; levels of

harassment were particularly high in the Midwest (85%) and

the South (75%)).

[6] While the Supreme Court has permitted many restrictions that make obtaining an abortion more difficult, particularly for low-income women, see Casey, 505 U.S. at 886-87,

it has not authorized the criminal prosecution of women seeking abortion care. Imposing criminal liability upon women for

their providers’ purported failure to comply with state abortion in the United States 2 (2011), available at http://www.guttmacher.org/

pubs/fb_induced_abortion.pdf. Rural women are even more affected by

the lack of abortion providers. Ninety-seven percent of nonmetropolitan

counties have no abortion provider. American Congress of Obstetricians

and Gynecologists, Health Disparities for Rural Women (Opinion No.

429), at 2 (2009). Nonhospital abortion providers estimate that 19% of

their patients travel 50-100 miles, and 8% travel more than 100 miles. Id.

It is even worse in Idaho. In Idaho in 2008, there were only 4 abortion providers and 95% of Idaho counties were without an abortion provider. Guttmacher Institute, State Facts about Abortion: Idaho 1-2 (2011), available

at http://www.guttmacher.org/pubs/sfaa/pdf/idaho.pdf. In fact, in 2010, of

the 1,510 abortions performed on Idaho residents, nearly half were performed out of state. Idaho Bureau of Vital Records and Health Statistics,

Induced Abortion Annual Report 129 (2010), available at

http://www.healthandwelfare.idaho.gov/Portals/0/Health/Statistics/2010

%20Reports/InducedAbortion.pdf. 

10936 MCCORMACK v. HIEDEMAN
tion regulations places a substantial obstacle in the path of

women seeking an abortion. Accordingly, McCormack is

likely to succeed on her claim that Chapter 6 constitutes an

undue burden on a woman’s constitutional right to terminate

her pregnancy before viability.

2. The district court did not base its decision on clearly

erroneous findings of fact.

A district court’s factual findings that underlie a preliminary injunction are reviewed for clear error, and may be

reversed only if “illogical, implausible, or without support in

inferences that may be drawn from the facts in the record.”

Am. Trucking Assn’s, Inc. v. City of Los Angeles, 660 F.3d

384, 395 (9th Cir. 2011) (quoting United States v. Hinkson,

585 F.3d 1247, 1251 (2009)(en banc)). 

Prosecuting attorney Hiedeman asserts that the district

court relied on clearly erroneous findings of fact. Specifically,

he asserts that the evidence did not establish that McCormack

used “FDA approved” medication prescribed by a physician.

We disagree. 

The district court explained that for McCormack to succeed

on the merits of her “facial challenge,” she must meet the

standard in Casey: demonstrate that the statute presents a substantial obstacle to a woman’s choice to undergo an abortion.

The district court agreed with McCormack that at the “early

stage in the proceedings,” Idaho Code § 18-608 puts, “a

woman . . . to the Hobson’s choice [sic] of finding a means

to police her healthcare provider’s actions, or being threatened with criminal prosecution for her healthcare provider’s

failings.” As in this court, Hiedeman argued before the district

court that the “long line of [Supreme Court] cases” demonstrates that a pregnant woman who undergoes an abortion can

be charged with a felony for violating abortion statutes. In

addressing Hiedeman’s argument, the district court stated

that, McCormack “clarified at oral argument that the FDAMCCORMACK v. HIEDEMAN 10937
approved medication she procured through the internet was

prescribed by a physician.” Emphasis added. The district

court reasoned that based on this information, one could argue

that the abortion was “ ‘performed’ by a physician.” The district court explained that “[u]nder these facts, she could be

criminally prosecuted if the state determined that the physician had not complied with Idaho statutory requirements.” In

sum, the court concluded that McCormack had demonstrated

that she was “likely to succeed on the merits of her facial

challenge to § 18-606.” Emphasis added. 

[7] The district court’s findings of fact, namely that

McCormack received from a physician FDA-approved medication used to induce an abortion, were not clearly erroneous.

These facts were offered in both McCormack’s declaration

and her complaint. McCormack stated in her declaration that

the medication was “approved for use in the United States”

and that these medications “are currently offered for sale over

the internet by abortion providers outside southeast Idaho.” In

her complaint, McCormack stated that “physicians providing

abortion services in the United States often prescribe medications approved by the U.S. Federal Drug Agency (“FDA”) to

cause women to abort their pregnancies medically, i.e., nonsurgically.” She also stated in her complaint that she considered “ingesting one or more medications she reasonably

believed to have been prescribed by a health care provider

practicing outside Bannock County, Idaho to induce [her]

abortion.” There is no disputing that an affidavit and a complaint may be the basis for a preliminary injunction unless the

facts are substantially controverted by counter-affidavits. See

K-2 Ski Co. v. Head Ski Co., 467 F.2d 1087, 1088 (9th Cir.

1972) (“A verified complaint or supporting affidavits may

afford the basis for a preliminary injunction . . . .”). Here,

prosecuting attorney Hiedeman did not offer any controverted

affidavits as to whether the pills were obtained from a physician over the internet or whether they were FDA-approved.

Additionally, the district court merely commented that oral

argument provided clarity to the extent that the complaint and

10938 MCCORMACK v. HIEDEMAN
affidavit had to be carefully worded because of the potential

for McCormack’s prosecution. 

These factual findings cannot be said to be “clearly erroneous” such that the court is left with a definite and firm conviction that the district court committed a clear error of

judgment. United States v. Hinkson, 585 F.3d 1247, 1260-61

(9th Cir. 2009) (en banc); Alaimalo v. United States, 645 F.3d

1042, 1060 (9th Cir. 2011) (“To be clearly erroneous, a decision must strike [the court] as more than just maybe or probably wrong; it must, as one member of this court recently

stated during oral argument, strike us as wrong with the force

of a five-week-old, unrefrigerated dead fish.”). 

[8] Accordingly, we conclude that the district court’s findings of fact were not clearly erroneous and the court did not

abuse its discretion in relying on those findings. 

II. The district court abused its discretion in crafting an

overbroad preliminary injunction. 

The scope of a preliminary injunction is generally reviewed

for abuse of discretion. SEC v. Interlink Data Network of Los

Angeles, Inc., 77 F.3d 1201, 1204 (9th Cir. 1996). 

The district court’s preliminary injunction states that prosecuting attorney Hiedeman “is restrained from enforcing Idaho

Code §§ 18-606 and 18-608(1).” Hiedeman argues that the

district court’s preliminary injunction is overbroad to the

extent that it grants relief beyond McCormack herself. For the

reasons set forth below, we conclude that the preliminary

injunction is overbroad and should be limited to enforcement

of the applicable code sections against McCormack only. 

The Supreme Court has cautioned that “injunctive relief

should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v.

Yamasaki, 442 U.S. 682, 702 (1979). Injunctive relief is an

MCCORMACK v. HIEDEMAN 10939
“extraordinary remedy,” Winter, 555 U.S. at 24, and “must be

tailored to remedy the specific harm alleged.” Park Vill.

Apartment Tenants Ass’n v. Mortimer Howard Trust, 636

F.3d 1150, 1160 (9th Cir. 2011). A district court abuses its

discretion by issuing an “overbroad” injunction. Id.; see also

Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir.

2009). Moreover, the purpose of a preliminary injunction is to

preserve the status quo between the parties pending a resolution of a case on the merits. U.S. Philips Corp. v. KBC Bank

N.V., 590 F.3d 1091, 1094 (9th Cir. 2010).

[9] At least one Supreme Court decision suggests that federal courts should only enjoin enforcement of criminal statutes against the plaintiffs before the court. In Doran v. Salem

Inn, Inc., the Court said “neither declaratory nor injunctive

relief can directly interfere with enforcement of contested

statutes or ordinances except with respect to the particular

federal plaintiffs, and the State is free to prosecute others who

may violate the statute.” 422 U.S. 922, 931 (1975). We

recently held that a district court abused its discretion in entering an overbroad preliminary injunction that enjoined “the

rules themselves as opposed to enjoining their enforcement as

to the plaintiffs before [it].” Stormans, 586 F.3d at 1140. 

[10] There is no need for the preliminary injunction in this

case to bar enforcement of § 18-606 against anyone except

McCormack in order to preserve the status quo between the

parties. The fact that McCormack may ultimately be entitled

to a declaratory judgment stating that § 18-606 is unconstitutional on its face (which would clearly bar prosecution of any

pregnant woman under the statute) does not mean that the

preliminary injunction should apply so broadly, at least in the

absence of class certification.

[11] Accordingly, we conclude that the district court’s preliminary injunction should be narrowed so that it enjoins only

future prosecution of McCormack.

10940 MCCORMACK v. HIEDEMAN
CROSS-APPEAL

In her cross-appeal, McCormack makes two arguments: (1)

that the district court should have enjoined enforcement of

Idaho Code § 18-606 in conjunction with both §§ 18-608(1)

and 18-608(2); and (2) that she has standing to challenge the

enforcement of Chapter 5, the Pain-Capable Unborn Child

Protection Act (“PUCPA”). 

III. The district court erred in not enjoining the enforcement of Idaho Code § 18-606 in conjunction with

both §§ 18-608(1) and 18-608(2).

In her cross-appeal, McCormack contends that the district

court should have enjoined enforcement of Idaho Code § 18-

606 in conjunction with both §§ 18-608(1) and 18-608(2). In

granting McCormack’s motion for a preliminary injunction,

the district court limited the injunction to § 18-608(1), which

is the code section governing abortions during the first trimester of pregnancy. The district court refused to extend the preliminary injunction to cover § 18-608(2), which is the code

section governing abortions during the second trimester of

pregnancy. In its order granting the preliminary injunction,

the court stated that it relied on those reasons set forth in the

court’s September 23, 2011 memorandum. In its September

23, 2011 Memorandum Decision, the district court held that

McCormack’s potential punishment for violating Idaho Code

§ 18-606 did not extend to all challenged subsections. The

district court found that “[b]ased on the facts alleged, there

can be no argument that [McCormack] violated either § 18-

608(2) or § 18-608(3).” Thus, the court found that McCormack “does not face any threat of prosecution under these

subsections.” Accordingly, the court found that there was not

a case or controversy as to § 18-608(2) or § 18-608(3). 

McCormack alleges that the district court erred because the

basis for the district court’s injunction against enforcement of

Idaho Code § 18-608(1) applies with equal force to § 18-

MCCORMACK v. HIEDEMAN 10941
608(2). She notes that the criminal complaint fails to cite

which statute—either § 18-608(1) or § 18-608(2)—Hiedeman

was charging McCormack under, in connection with § 18-

606. Further, the criminal complaint makes no reference to

the trimester of McCormack’s pregnancy at the time of the

alleged abortion. Thus, the threat she faced (and still faces

based on Hiedeman’s affidavit that he has not yet determined

whether to re-commence the criminal action) was that she

would be prosecuted for violating either subsection of the

statute. For the reasons set forth below, we agree with McCormack that the district court erred in failing to extend the preliminary injunction to § 18-608(2) because McCormack faces

a genuine threat of prosecution under this subsection of the

statute. 

This court has recognized that “neither the mere existence

of a proscriptive statute nor a generalized threat of prosecution satisfies the ‘case or controversy’ requirement.” Thomas

v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139

(9th Cir. 2000) (en banc). Rather, a plaintiff must face a “genuine threat of prosecution.” Id. In evaluating the genuineness

of a claimed threat of prosecution, courts examine three factors: (1) “whether the plaintiffs have articulated a ‘concrete

plan’ to violate the law in question,” (2) “whether the prosecuting authorities have communicated a specific warning or

threat to initiate proceedings,” and (3) “the history of past

prosecution or enforcement under the challenged statute.” Id.;

see also Babbitt v. United Farm Workers Nat’l Union, 442

U.S. 289, 298 (1979) (holding that, “[w]hen contesting the

constitutionality of a criminal statute, it is not necessary that

the plaintiff first expose himself to actual arrest or prosecution

to be entitled to challenge the statute that he claims deters the

exercise of his constitutional rights.”) (citation and alterations

omitted).10

10These principles extend to the abortion context. In Griswold v. Connecticut, 381 U.S. 479, 481 (1965), the Supreme Court concluded that a

10942 MCCORMACK v. HIEDEMAN
[12] Applying these principles here, McCormack faced

prosecution and continues to be threatened with prosecution

as a result of her alleged violation of Idaho Code § 18-606, in

conjunction with either § 18-608(1) or § 18-608(2). First,

McCormack has allegedly already violated Idaho Code § 18-

606, which makes it a felony to obtain an abortion in a manner not authorized by the Idaho abortion statutes. There is no

question that prosecuting attorney Hiedeman filed felony

charges against McCormack for allegedly violating Idaho

Code § 18-606. But, the criminal complaint fails to specify

whether in conjunction with § 18-606 Hiedeman brought

charges under § 18-608(1), regulating abortions during the

first trimester, or § 18-608(2), regulating abortions during the

second trimester. Further, there is nothing in the criminal

complaint that states the gestional age of the fetus or the trimester that McCormack was in when the alleged abortion

occurred. It is also undisputed that the state court dismissed

these charges without prejudice and Hiedeman has not

decided whether to re-file the charges against McCormack.

medical director who had been convicted for giving information, instruction, and medical advice regarding contraception had standing to challenge

the constitutionality of the Connecticut law. Then in Carey v. Population

Servs., Int’l, 431 U.S. 678, 682-84 (1977), the Court held that a corporation that had been advised by New York authorities that they were violating the New York statute prohibiting sale of contraception to minors under

16, and had at least been threatened with prosecution on at least one occasion, had standing to challenge the statute. Finally, in Planned Parenthood

of Idaho, Inc. v. Wasden, 376 F.3d 908, 916-18 (9th Cir. 2004), an abortion provider, Dr. Glenn Weyhrich, stated his clear intention to continue

to perform abortions for his patients, including some minors, despite a

statute prohibiting him from performing abortions on minors. Id. at 916.

We concluded that Dr. Weyhrich’s clear intention resulted in a “sufficiently concrete and imminent injury-possible prosecution and

imprisonment-to challenge the provisions that ban abortion providers from

performing abortions on minors.” Id. (citing Diamond v. Charles, 476 U.S.

54, 65 (1986) (“A physician has standing to challenge an abortion law that

poses for him a threat of criminal prosecution.”)). Therefore, we held that

Dr. Weyhrich had standing based upon a threat of prosecution by the

county prosecuting attorney. Id. at 917. 

MCCORMACK v. HIEDEMAN 10943
Thus, McCormack is susceptible to Hiedeman recommencing the criminal charges against McCormack under

§ 18-606 in conjunction with either § 18-608(1) or § 18-

608(2). Second, Hiedeman, in his capacity as county prosecutor, has communicated a specific threat on two occasions to

bring felony charges against McCormack, when he: (1) actually brought a criminal complaint against McCormack, and

(2) filed a declaration stating that he may still re-file the complaint. Finally, this history of past prosecution, in the form of

an actual criminal complaint being filed against McCormack

under Idaho Code § 18-606, weighs in favor of a preliminary

injunction for McCormack with regard to § 18-606 in conjunction with both § 18-608(1) and § 18-608(2). 

[13] Thus the possibility exists that Hiedeman was going

to (and may still) bring criminal charges against McCormack

based on her alleged violation of either § 18-608(1) or § 18-

608(2).11 Accordingly, we conclude that the district court

erred in failing to extend the preliminary injunction to § 18-

608(2) in conjunction with § 18-606.

IV. McCormack does not have standing to seek preenforcement prospective relief against the enforcement of the PUCPA.

In her cross-appeal, McCormack also argues that she has

standing to challenge the enforcement of Chapter 5, the

“PUCPA.” PUCPA categorically bans non-therapeutic abortions at and after twenty weeks. “Any person who intentionally or recklessly performs or attempts to perform an abortion

in violation of the provisions of section 18-505, Idaho Code,

11It appears to some extent Hiedeman concedes this argument. In his

reply brief, Hiedeman states in a footnote that, “As [he] understands the

injunction, he is precluded from initiating any prosecution under § 18-606

against the mother of an allegedly aborted fetus.” Therefore, Hiedeman

appears to agree that he cannot bring criminal charges under either § 18-

606(1) or § 18-606(2). 

10944 MCCORMACK v. HIEDEMAN
is guilty of a felony.” Idaho Code § 18-507. PUCPA further

states: “No penalty shall be assessed against the woman upon

whom the abortion is performed or attempted to be performed.” Id. PUCPA also provides civil remedies in the form

of actual damages to “[a]ny woman upon whom an abortion

has been performed in violation of the [PUCPA] or the father

of the unborn child.” Idaho Code § 18-508(1). PUCPA further

permits certain persons, including a prosecuting attorney, to

file an action for injunctive relief against an abortion provider

who violates § 18-505 by performing an abortion at or after

twenty weeks.12 Idaho Code § 18-508(2). 

PUCPA was not enacted without controversy. Idaho’s own

Attorney General explained in a 17-page letter that PUCPA

“plainly intends to erect a substantial obstacle to the right to

choose,” and “there is strong reason to believe that [PUCPA]

is unconstitutional under existing precedent.”

13

12It is worth noting that this law is directed at a relatively small percentage of abortions, both nationally and within Idaho. In 2008, the most

recent year for which abortion statistics are available from the Centers for

Disease Control and Prevention, there were approximately 825,564 abortions performed in the United States. Karen Pazol et al., Centers for Disease Control and Prevention, Abortion Surveillance-United States, 2008,

at 1 (2011). Of these abortions, only 7.3% were performed at 14-20

weeks’ gestation, and only 1.3% performed in or after the 21st week of

gestation. Id. In Idaho, in 2010, there were 1,510 abortions. Idaho Bureau

of Vital Records, supra at 129; id. at 167 (The Idaho population in 2010,

was 1,567,582). Of the 1,510 abortions, only 6 were performed at 16-20

weeks’ gestation, 5 performed at 21-24 weeks’ gestation, and 1 performed

in or after the 25th week of gestation. Id. at 133.

13The Attorney General noted that Supreme Court precedent establishes:

the Act’s various restrictions operate, at least in part, prior to viability. First, twenty weeks precedes the usual viability point, as

recognized in Roe and Danforth, by at least four weeks . . . . Second, although technology advances since the 1970s have made it

easier to sustain life outside the womb at an earlier state, it seems

clear that, in at least a fair percentage of pregnancies today, the

fetus is not viable by twenty weeks. 

Thus, “[b]ecause the Act’s restrictions apply at twenty weeks, they operate

pre-viability for at least some portion of pregnancies.” With regard to the

legislative findings, the Idaho Attorney General admits that these findings

“do not disturb [its] analysis.” 

MCCORMACK v. HIEDEMAN 10945
The district court determined that McCormack lacked

standing to challenge enforcement of PUCPA and, for that

reason, refused to issue a preliminary injunction enjoining

Hiedeman from criminally prosecuting or bringing any civil

action for injunctive relief against abortion providers. The district court concluded that McCormack does not allege that she

was pregnant when she filed this action nor does she allege

that her past conduct in purchasing medication to induce an

abortion would fall within the proscription of PUCPA. Further, the court found that her testimony that she would seek

an abortion if she became pregnant did not suffice to give her

standing. 

McCormack concedes that her challenge to PUCPA is “preenforcement.” McCormack has not been prosecuted or threatened with prosecution under PUCPA. But, McCormack

argues that because no physician located in southeast Idaho

offers pre-viability abortions to women beyond the 19th week

of their pregnancy, no physician will have standing to challenge the constitutionality of PUCPA. Nevertheless, McCormack relies on the fact that she was criminally charged under

Chapter 6 (§ 18-606) as proof of potential future criminal

charges under PUCPA (Chapter 5). She also argues that based

on her prior status as a pregnant woman, she should have

standing to challenge this statute. 

1. Standing based on the possibility of future criminal

charges under PUCPA.

In contrast to the previous issue regarding Chapter 6

(including § 18-606, § 18-608(1) and § 18-608(2)), no

charges were brought against McCormack under Chapter 5

(PUCPA). Hiedeman brought charges only under § 18-606,

alleging that McCormack purposely terminated her own pregnancy in a manner not authorized by statute. Although

McCormack was prosecuted for submitting to a pre-viability

abortion, PUCPA was not even enacted at the time the criminal complaint was filed. 

10946 MCCORMACK v. HIEDEMAN
McCormack argues, however, that she remains threatened

with prosecution under PUCPA based on the prior Chapter 6

criminal case being dismissed without prejudice and Hiedeman’s declaration that he may re-commence a prosecution.

She argues:

it is irrelevant which statute or subsection of a statute

Hiedeman may choose to use to prosecute McCormack . . . for terminating a pregnancy in Bannock

County. McCormack is threatened by a repetition of

her alleged injury by the threat Hiedeman will prosecute her or her provider again under any applicable

statute for terminating pregnancy in Bannock

County. 

She asserts that to determine issues of standing, the court

must look to the facts as they existed at the time the complaint

was filed. American Civil Liberties Union of Nevada v.

Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006); Clark v. City of

Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001) (“Standing is

determined by the facts as they exist at the time the complaint

is filed”). Here, when McCormack filed her civil complaint

on September 16, 2011, PUCPA was enacted. Idaho Code

§ 18-501 (enacted April 13, 2011). Thus, she asserts that the

court can consider the effect that PUCPA has on McCormack’s prospective chance of being criminally charged.

[14] McCormack cannot satisfy Thomas‘ three-part test,

set forth above, for determining whether a plaintiff faces a

“genuine threat of prosecution” under PUCPA. See 220 F.3d

at 1139. First, McCormack does not have a “concrete plan” to

violate PUCPA. PUCPA explicitly excludes women from

criminal liability. Idaho Code § 18-507 (“No penalty shall be

assessed against the woman upon whom the abortion is performed or attempted to be performed.”). Therefore, there is no

“concrete” way for McCormack to violate the law as an individual pregnant woman because PUCPA specifically excludes

women from criminal liability. Second, the “prosecuting

MCCORMACK v. HIEDEMAN 10947
authorities have [not] communicated a specific warning or

threat to initiate proceedings” under PUCPA. Thomas, 220

F.3d at 1139. Hiedeman’s declaration specifically states: “My

office has not determined as of this date whether new or additional evidence is or may become available to warrant recommencing a prosecution under § 18-606.” Thus, the only

threat of future prosecution is under Chapter 6, not Chapter 5

(PUCPA). Finally, the third Thomas factor does not tilt in her

favor because there is no history of past prosecution or

enforcement under PUCPA. McCormack was prosecuted

under Chapter 6, not Chapter 5 (PUCPA). 

In short, McCormack does not face a genuine threat of

prosecution under PUCPA sufficient to confer standing to

challenge the statute.

2. Standing based on her testimony that she would seek

an abortion if she became pregnant.

McCormack’s testimony that she would seek an abortion if

she became pregnant does not suffice to give her standing. It

is undisputed that McCormack was not pregnant when she

filed this lawsuit. As a result, she does not have standing

under any theory articulated in Roe. 

In contrast with Jane Roe and akin to McCormack’s position, the Roe Court found that John and Mary Doe, a married

couple who filed a companion complaint along with Roe’s,

did not have standing. Roe, 410 U.S. at 127-129. The Does

alleged that they were childless, that Mrs. Doe was not pregnant, and that they had been advised that Mrs. Doe should

avoid pregnancy for medical and “other highly personal reasons.” Id. at 127. They alleged that if Mrs. Doe became pregnant, they would want to terminate the pregnancy by abortion.

Id. at 128. They also alleged that they were injured because

they were forced to choose between abstaining from normal

sexual relations or putting Mrs. Doe’s health at risk through

a possible pregnancy. Id. The Court said, “[t]heir claim is that

10948 MCCORMACK v. HIEDEMAN
sometime in the future Mrs. Doe might become pregnant

because of possible failure of contraceptive measures, and at

that time in the future she might want an abortion that might

then be illegal under the Texas statutes.” Id. The Court concluded that the Does did not have standing:

Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible

future unpreparedness for parenthood, and possible

future impairment of health. Any one or more of

these several possibilities may not take place and all

may not combine. In the Does’ estimation, these possibilities might have some real or imagined impact

on their marital happiness. But we are not prepared

to say that the bare allegation of so indirect an injury

is sufficient to present an actual case or controversy.

Id.; see also Abele v. Markle, 452 F.2d 1121, 1124-25 (2d Cir.

1971) (holding that non-pregnant plaintiffs had no standing to

challenge abortion statute solely on basis of childbearing age

because “[a]lthough some of them may in the future become

pregnant and may in such event desire an abortion . . . it is

also possible that they will not become pregnant or that if they

do they will, upon further reflection, decide for other reasons

against an abortion. . . . It is clear that any threat of harm to

them is remote and hypothetical.”). 

As with the Does, in McCormack’s case there are too many

“possibilities that may not take place and all may not combine.” Roe, 410 U.S. at 128. Therefore, McCormack does not

have standing to challenge PUCPA based on the fact that she

was pregnant before filing her civil complaint or based on a

possible future pregnancy. 

3. Standing based on the alleged chilling effect PUCPA

will have on doctors’ willingness to provide abortions after nineteen weeks in Idaho.

McCormack asserts she is injured by PUCPA because it

will have the effect of ensuring that there are no providers

MCCORMACK v. HIEDEMAN 10949
willing to provide an abortion after 19 weeks of pregnancy in

southeast Idaho. But the record demonstrates that there were

no providers physically located in southeast Idaho willing to

perform any abortions before the law was enacted. 

[15] Even if a doctor could bring a challenge to PUCPA on

the basis of potential prosecution, McCormack cannot do so

on behalf of an unnamed provider. Accordingly, the district

court did not err in determining that McCormack lacked

standing to challenge PUCPA.14

CONCLUSION

For the reasons discussed above, we affirm in part and

reverse in part the district court’s grant of a preliminary

injunction. Specifically, we AFFIRM the district court’s

determination that McCormack will likely succeed with her

facial constitutional challenges to Idaho Code §§ 18-606 and

18-608(1) and; AFFIRM the district court’s conclusion that

McCormack lacked standing to seek pre-enforcement relief

against the enforcement of PUCPA. 

We REVERSE the scope of the injunction to the extent that

it grants relief beyond McCormack. We also REVERSE the

district court’s determination that McCormack did not have

standing to enjoin enforcement of Idaho Code § 18-608(2) in

conjunction with § 18-606. Each party shall bear its own costs

on appeal.

AFFIRMED in part, REVERSED in part, and

REMANDED.

14Our holding does not foreclose other constitutional challenges to

PUCPA, in the event that a party can demonstrate standing. 

10950 MCCORMACK v. HIEDEMAN