McCormack v. Herzog

788 F.3d 1017

Jennie Linn McCORMACK, Plaintiff–AppelleeRichard Hearn, M.D., on his own behalf and on behalf of his patients, Intervenor–Plaintiff–Appellee

v.Stephen F. HERZOG, Bannock County Prosecuting Attorney, Defendant–Appellant.

No. 13–35401.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 18, 2014.

Filed May 29, 2015.

Clay R. Smith (argued), Deputy Attorney General, and Steven L. Olsen, Chief of Civil Litigation, Attorney General's Office, Boise, ID, for Defendant–Appellant.

Richard A. Hearn (argued), Racine, Olson, Nye, Budge & Bailey, Chartered, Pocatello, ID, for Plaintiff–Appellee.

Jack Van Valkenburgh, Boise, ID, for Intervenor–Plaintiff–Appellee.

Kathleen M. O'Sullivan and Katherine G. Galipeau, Perkins Coie LLP, Seattle, WA, for Amici Curiae Legal Voice, Center for Reproductive Rights, National Advocates for Pregnant Women, and Planned Parenthood of the Great Northwest.

Lawrence J. Joseph, Washington, D.C., for Amicus Curiae Eagle Forum Education and Legal Defense Fund.

Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, Chief District Judge, Presiding. D.C. No. 4:11–cv–00433–BLW.

Before: HARRY PREGERSON and KIM McLANE WARDLAW, Circuit Judges, and DONALD E. WALTER, Senior District Judge.^*

OPINION

PREGERSON, Circuit Judge:

In this 42 U.S.C. § 1983 action, Stephen Herzog, the Prosecuting Attorney of Bannock County, Idaho, appeals the district court's order denying his motion for partial summary judgment and granting the joint motion for partial summary judgment in favor of appellees Jennie McCormack (“McCormack”) and Dr. Richard Hearn (“Dr. Hearn”).

Before the district court, Jennie McCormack claimed that Idaho Code Title 18, Chapters 5—the Pain–Capable Unborn Child Protection Act (“PUCPA”)—and 6, which regulate the performance of abortions, violate various provisions of the United States Constitution. McCormack's attorney is Dr. Hearn, who is also an Idaho licensed physician who intends to provide his patients with pre-viability medical abortions. Dr. Hearn, as a third party-intervenor, also challenged the constitutionality of §§ 18–505 and 18–608, which fall within Chapters 5 and 6 of Idaho Code Title 18.

We have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we affirm.

BACKGROUND

This case had its genesis in an Idaho state criminal prosecution when, on May 18, 2011, the then Prosecuting Attorney for Bannock County, Idaho, Mark Hiedeman,¹ filed a criminal complaint against Jennie McCormack. The complaint charged McCormack with violating Idaho Code § 18–606,² for knowingly submitting to an abortion not authorized under the statute, or purposely self-terminating a pregnancy. McCormack admitted to the police that she self-induced an abortion after ingesting a pack of five pills.³ A physician examined the fetus and estimated its gestational age to have been between nineteen and twenty-three weeks, “but with difficult certainty.”

Then on September 7, 2011, an Idaho state judge dismissed the criminal complaint without prejudice for lack of probable cause.

On September 16, 2011, McCormack filed a class action in the United States District Court for the District of Idaho against the then Prosecuting Attorney Hiedeman, “seeking a determination that section 18–606, as well as other provisions of Title 18, Chapters 5 and 6 of the Idaho Code, which also regulate abortion[s], violate various provisions of the United States Constitution.”

On November 14, 2011, Chief United States District Judge for the District of Idaho, B. Lynn Winmill, granted McCormack's motion for preliminary injunctive relief and enjoined then Prosecuting Attorney Hiedeman from enforcing § 18–606 (criminalizing submitting to an abortion), as interpreted together with § 18–608(1).⁴ The district court, however, held that McCormack did not have standing to challenge § 18–608(2)⁵ or § 18–505.⁶

On August 22, 2012, Prosecuting Attorney Hiedeman determined that he would not re-file a criminal complaint against McCormack for allegedly violating § 18–606 because he felt that it was unlikely that his office would develop additional evidence. About two months later, the Prosecuting Attorney offered McCormack transactional immunity from prosecution for the alleged December 2010 abortion. McCormack declined to sign the agreement.

On February 23, 2012, McCormack's attorney, Dr. Hearn, moved to intervene “on his own behalf and on the behalf of his patients.” Dr. Hearn is a licensed physician as well as an attorney in Idaho, and has stated his intent to provide medical abortions by “prescrib[ing] FDA approved medications to women in Bannock County, Idaho such as McCormack who ... seek to medically (non-surgically) terminate their pregnancies prior to fetal viability in violation of the restrictions contained in Idaho Code Title 18, Chapters 5 and 6.” Medical abortions induced by pills are distinct from surgical or therapeutic abortions which usually take place in a medical clinic or a hospital. Since 1997, Dr. Hearn has continuously registered with the Federal Drug Enforcement Agency and the Idaho State Board of Pharmacy, which allows him to legally prescribe medication in Bannock County. Dr. Hearn has not provided medical abortions in the past, does not have a medical office in which to treat patients, and has practiced as a full-time attorney since 1997.

The district court granted Dr. Hearn's motion to intervene. Dr. Hearn filed an amended complaint-in-intervention that similarly challenged the constitutionality of certain provisions of Idaho Code Title 18, Chapters 5 and 6. Pursuant to 42 U.S.C. § 1983, Dr. Hearn sought to enjoin the Prosecuting Attorney from criminally prosecuting or threatening to prosecute any woman who seeks an abortion or any health provider for violating Idaho Code Title 18, Chapters 5 and 6. Dr. Hearn also sought a declaratory judgment striking down the relevant Idaho statutes' criminal sanctions as unconstitutional facially and as applied to women seeking an abortion in Bannock County, Idaho, or any health provider who provides assistance to such women.

On September 11, 2012, we affirmed the district court's grant of a preliminary injunction that enjoined the Prosecuting Attorney from prosecuting McCormack under §§ 18–606 and 18–608(1), and expanded the injunction to include § 18–608(2) because McCormack faced a “genuine threat of prosecution under th[is] subsection of the statute.” McCormack v. Hiedeman, 694 F.3d 1004, 1020–21 (9th Cir.2012) (McCormack I ). We limited the preliminary injunction, however, to affect only McCormack (as opposed to all women affected by § 18–606 ), id. at 1019–20, and further held that McCormack lacked standing to seek pre-enforcement relief against the enforcement of PUCPA on the basis of future pregnancies, id. at 1022–25.

On October 16, 2012, before the district court McCormack and Dr. Hearn jointly moved for partial summary judgment to declare three Idaho statutes— § 18–606, in conjunction with § 18–608(1) or (2) ; § 18–605,⁷ in conjunction with § 18–608(1) or (2) ; and § 18–505, in conjunction with § 18–507 or § 18–508—unconstitutional, and to permanently enjoin the Prosecuting Attorney from enforcing the statutes.

On March 6, 2013, the district court granted McCormack and Dr. Hearn's joint motion for partial summary judgment and denied Prosecuting Attorney Herzog's cross-motion for partial summary judgment. On March 20, 2013, McCormack and Dr. Hearn moved to dismiss all remaining claims against Herzog and to enter a final judgment. The district court granted the motion and entered final judgment on May 2, 2013, declaring the challenged statutes unconstitutional, and enjoining Herzog from prosecuting McCormack or Dr. Hearn under the challenged statutes.

Herzog timely appeals the district court's final judgment.

DISCUSSION

A. This court has jurisdiction.

1. Standard of Review

“Mootness is a question of law reviewed de novo.” Siskiyou Reg'l Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 559 (9th Cir.2009) (quoting Barter Fair v. Jackson County, 372 F.3d 1128, 1133 (9th Cir.2004) ). “A case becomes moot whenever it loses its character as a present, live controversy.... The question is not whether the precise relief sought at the time [ the case] was filed is still available. The question is whether there can be any effective relief.” Id. (quoting Earth Island Inst. v. United States Forest Serv., 442 F.3d 1147, 1157 (9th Cir.2006) ).

Questions of standing are also reviewed de novo, but underlying factual findings are reviewed for clear error. Preminger v. Peake, 552 F.3d 757, 762 n. 3 (9th Cir.2008).

2. McCormack's challenge to § 18–606 is not moot.

Herzog asserts that McCormack's challenge to § 18–606 is moot because the Prosecuting Attorney granted McCormack transactional immunity for the alleged 2010 abortion.

“A case might become moot if subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. The heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (internal quotation marks and citation omitted). Herzog, therefore, must demonstrate that his office will never again prosecute McCormack under § 18–606, or that the court is no longer capable of “affect[ing] the rights of litigants in the case before [it].” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citing North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) ).

Herzog's office offered McCormack transactional immunity from prosecution for her alleged 2010 abortion, which McCormack declined to accept.⁸ The district court questioned the validity of the offer of transactional immunity because the timing of the offer suggests an...