## Facts

- Jennie Linn McCormack, an Idaho resident, obtained medication over the internet and used it at home to terminate her pregnancy.
- Bannock County Prosecuting Attorney Mark L. Hiedeman filed a state felony complaint charging McCormack with “Unlawful Abortion” under Idaho Code § 18-606, exposing her to up to five years’ imprisonment.
- The state court dismissed the criminal complaint without prejudice, and the prosecutor did not disavow refiling.
- McCormack filed a federal action seeking to enjoin enforcement of Idaho Code § 18-606 and § 18-608 (requirements defining when an abortion is “authorized”), and to enjoin Idaho’s Pain-Capable Unborn Child Protection Act (Idaho Code §§ 18-505 to 18-507).
- The district court preliminarily enjoined enforcement of § 18-606 and § 18-608(1) (first-trimester facility requirement), denied relief as to § 18-608(2) (second-trimester requirement) and the Pain-Capable Act for lack of standing, and framed the injunction to protect McCormack and others.

## Issues

1. Whether McCormack had standing to bring a pre-enforcement challenge to Idaho Code § 18-606 and the incorporated requirements of § 18-608 after her prior prosecution was dismissed without prejudice.
2. Whether McCormack had standing to challenge § 18-608(2) in conjunction with § 18-606 and to challenge the Pain-Capable Unborn Child Protection Act.
3. Whether McCormack was likely to succeed on facial constitutional challenges to § 18-606 and § 18-608(1) for purposes of preliminary injunctive relief.
4. Whether the preliminary injunction was overbroad by extending beyond protection of McCormack.

## Decision

- Affirmed the grant of a preliminary injunction as to Idaho Code § 18-606 and § 18-608(1), including the determination that McCormack showed a credible threat of prosecution and a likelihood of success on the merits at the preliminary stage.
- Reversed the district court’s standing ruling as to § 18-608(2), holding McCormack had standing to challenge § 18-608(2) in conjunction with § 18-606.
- Affirmed the ruling that McCormack lacked standing to seek pre-enforcement relief against the Pain-Capable Unborn Child Protection Act.
- Reversed the injunction’s scope to the extent it extended relief beyond McCormack, requiring narrower preliminary relief.
- Remanded for further proceedings consistent with these rulings.

## Legal Principles

- A plaintiff has pre-enforcement standing where there is a credible threat of prosecution, including when the plaintiff was previously charged, the charge was dismissed without prejudice, and the prosecutor has not disavowed refiling.
- When a criminal statute defines unlawful conduct by incorporation of related provisions, a credible threat of prosecution under the criminal statute can support standing to challenge the incorporated provisions in conjunction with that statute.
- At the preliminary-injunction stage, a court may enjoin enforcement upon a showing of likely success and irreparable harm, including harm from a credible threat that chills exercise of asserted constitutional rights.
- Preliminary injunctive relief must be tailored to the plaintiff’s circumstances; absent an adequate basis at the preliminary stage, an injunction should not extend to nonparties.

## Conclusion

The Ninth Circuit upheld preliminary relief blocking enforcement of Idaho’s unlawful-abortion statute and a first-trimester facility requirement as applied to McCormack, allowed her related challenge to the statute’s second-trimester provisions to proceed, rejected her attempt to challenge the Pain-Capable Act for lack of standing, and required the injunction to be narrowed to protect only her at the preliminary stage.


McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012)