Category Archives: Case Comments


Case Comment: Cece v. Holder

Case Comment

Yana Mereminsky[1]

Cece v. Holder, 733 F.3d 662 (7th Cir. 2013).

Click here to access a PDF version of this case comment.

Through the granting of asylum, refugee law aims to protect those who are fundamentally marginalized in their country because of characteristics over which they have no control.[2] If an alien can demonstrate that she is unable or unwilling to return to her country of origin because of either persecution or a well-founded fear of future persecution on account of her “membership in a particular social group,” (hereinafter, “PSG”) she may qualify as a refugee eligible for asylum.[3]

In Cece, an Albanian alien fled her country and applied for asylum in the US claiming a gender-based PSG that made her an ideal target for prostitution and trafficking in her home country. Although the Board of Immigration Appeals (hereinafter, “Board”) denied Cece’s asylum claim, the Seventh Circuit vacated the Board’s holding, finding that Cece’s proposed PSG was not too broad since it was consistent with other approved PSGs in the Board’s precedent. The court’s decision represents a progressive step – though not the first – in American asylum law toward recognizing more broadly and simply defined gender-based PSGs instead of the narrow PSGs that have led to asylum denials for deserving applicants in years past. Applicants may better present their claims under broadly defined gender-based PSGs when they are not hampered by the intricacies of judge-imposed defining language, which can be both circular and unfairly disadvantageous. Broader defined PSGs are also less likely to conflate other asylum criteria, like the nexus requirement, with PSG eligibility. Consequently, the frequently raised fear, which Judge Easterbrook presents in his Cece dissent, that broad PSGs will allow too many refugees into America is misplaced.


Johana Cece, an Albanian native, fled her country and arrived in the US in 2002 seeking asylum.[4] While Cece was living alone in Korce, Albania, a well-known criminal gang leader named Reqi began following her around and asking her on dates.[5] Cece knew that Reqi and his gang were known for participation in prostitution rings, murder, and the drug trade while enjoying complete immunity from the law.[6] In June 2001, Reqi followed Cece into a cosmetics store, pinned her against a wall, and threatened that he would make her do anything he wanted.[7] No one in the store came to Cece’s aid,[8] and when she reported the assault, the police dismissed it for lack of proof.[9] A few days after the incident, someone threw a rock through Cece’s window, and fearing for her safety, she went to stay in a dormitory with her sister in Tirana, 120 miles from Korce.[10] Her sister left one year later, and Cece, having lost access to the dormitory, was forced to live alone again.[11]

Cece fled to the US and applied for asylum and withholding of removal asserting that she feared returning to Albania because she believed she would be kidnapped and forced into a prostitution ring.[12][13] She claimed that as a single woman living alone in Albania, she would be a target for Reqi’s gang no matter where she lived.[14]

A.    Immigration Hearing

At the immigration hearing, the immigration judge granted Cece asylum, determining that she belonged to the PSG of “young women who are targeted for prostitution by traffickers in Albania,” that the Albanian government was unwilling or unable to protect these women, and that Cece’s testimony was credible and her fear reasonable.[15]

Also during the hearing, Dr. Bernd Fischer, a professor of Balkan History, described Cece’s experience as “unfortunately usual” and testified that it is an anomaly for a single woman to live alone in Albania, adding that this would make her an ideal target for a human trafficker.[16] He further stated that trafficking of single women pervades everywhere in Albania, not just Cece’s village, Korce, and although gangs primarily target women between the ages of sixteen and twenty-six, older women are also trafficking targets.[17] Finally, Dr. Fischer explained that the Albanian state does not adequately punish traffickers.[18]

B.    Board of Immigration Appeals

Subsequently, however, the Board vacated the immigration judge’s decision, finding that Cece had failed to establish past persecution and had successfully relocated within Albania.[19] The Board specifically found that the immigration judge erred in affirming Cece’s PSG and noted that a social group must be visible and united by more than the risk of persecution to be eligible.[20]

C.    Remand and Subsequent Appeal

On remand, the immigration judge recognized that he was bound by the Board’s determinations and denied Cece’s claim for asylum. After her second appeal was dismissed by the Board,[21] Cece appealed to the Seventh Circuit.[22]

D.   Seventh Circuit

On February 6, 2012, a three-judge panel of the Seventh Circuit Court of Appeals granted Cece’s petition for rehearing en banc and vacated the Board’s opinion and judgment.[23] Judge Rovner began the Seventh Circuit decision by stating the statutory asylum eligibility requirement:  To be eligible for asylum, an applicant must show that she is “unable or unwilling to return” to the country of her nationality “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”[24] The applicant must then establish “a nexus between her fear of future persecution and one of those five protected grounds.”[25] An applicant who successfully proves past persecution is “presumed to have a well-founded fear of future persecution, which the Attorney General can rebut by demonstrating a change in conditions in the applicant’s home country.”[26]

The issue in this case was whether Cece sufficiently demonstrated that she belonged to a PSG that is cognizable under the Immigration and Nationality Act.[27] Because Congress has not directly addressed what it means precisely by “social group,” the court deferred to the Board’s interpretation.[28] The Board had previously held “social groups” to be “groups whose membership is defined by a characteristic that is either immutable or is so fundamental to individual identity or conscience that a person ought not be required to change.”[29] For example, it would not have been appropriate to ask Cece to marry a man who could protect her because her decision to marry someone of her own choice was too fundamental to her identity and conscience.[30]

The court disagreed with the Board’s conclusion that Cece’s social group “[was] defined in large part by the harm inflicted on the group, and [did] not exist independently of the traffickers.”[31] Even if other individuals who share Cece’s common characteristics suffered past persecution or had a well-founded fear of future persecution, this did not mean that persecution was the only element that linked the social group.[32] Thus the Seventh Circuit recognized Cece’s PSG by focusing on its fundamental, immutable characteristics instead of the persecution its members endured or feared. The individuals in this group were united by the common and immutable characteristics of being (1) young, (2) Albanian, (3) women, (4) living alone, which made them an ideal target for trafficking.[33] These elements combined to form a PSG of young, single, Albanian women living alone who fear prostitution.[34]

Judge Rovner concluded that although the court did not need to decide whether gender per se may constitute a cognizable PSG, gender plus one more narrowing characteristic could.[35] The major problem that the court found with the Board’s rejection of Cece’s (Albanian woman plus “young” plus “single” plus “living alone”) PSG was this rejection’s inconsistency with prior decisions. The court did not think that Cece’s social group was substantively different than that of young women in some African tribes fleeing female genital mutilation practices or Jordanian women fleeing the threat of honor killings – both groups that the Board had previously approved.[36] Given that the Board’s decisions were inconsistent, the court could not condone arbitrariness by picking one of the inconsistent decisions to follow.[37] Thus, the court held that, in rejecting Cece’s social group, the Board erred in light of its own precedent.[38] Because the court was not deciding this issue on first instance (since the Board and immigration judge had all the relevant facts before them), there was no need to remand on the PSG issue.[39][40]  Judge Easterbrook dissented, arguing that Cece’s proposed PSG was much too broad.[41]


            Persecution against women has become an all too frequent tragedy around the world. Female trafficking is one culprit, but other forms of persecution, like those involving female genital mutilation, domestic violence, and forced marriage, also prevail.[42] Asylum reform at the protected grounds stage (the PSG stage in Cece) of the eligibility determination is one way to offer better protection to those women who come to America after suffering persecution on account of their gender or gender plus other immutable characteristics. This reform is proposed in the context of broadening definitions of gender-based PSGs.[43] Gender-based PSG claims are those in which the applicant’s gender is the defining fundamental characteristic or one of the defining fundamental characteristics that led to her past or fear of future persecution.[44]

Broader and simpler definitions for gender-based PSGs have already met approval internationally and even in the Board’s precedent. The UNHCR specifically recognizes women as being particularly vulnerable to trafficking because of gender.[45] Some tribunals of other states have also recognized a trafficking nexus for broad PSGs made of “young women in Albania.”[46] In the American case, Matter of Acosta, the Board held that “social groups” are “groups whose membership is defined by a characteristic that is either immutable or is so fundamental to individual identity or conscience that a person ought not be required to change.”[47] Matter of Acosta then recognized sex – a large group – as an immutable characteristic.[48] Further Board precedent included recognition of PSGs like “women who fear genital mutilation,” “Christian women in Iran who do not wish to adhere to the Islamic female dress code,” and “Iranian women who refuse to conform to the government’s gender-specific laws and social norms.”[49] These definitions are broad because they may encompass a very large number of women; it is easy to imagine that a highly sizable portion of the Albanian female population might fear prostitution if the crime is so prevalent in the country.

Consequently, sweeping PSG definitions have raised concerns in America, the above Board precedent notwithstanding, that recognition of overly broad PSGs will result in admission of intolerably large numbers of refugees.[50] As a result, American attorneys and adjudicators have frequently defined PSGs in trafficking cases more narrowly and circularly.[51] However, I argue below that global and American legal precedent that broadens gender-based PSGs rather than narrowing them is precisely what effective asylum reform requires. Recent global developments involving frequent persecution of women, like trafficking,[52] emphasize the importance of combining gender with other basic Acosta immutable traits to form broadly-recognized PSGs – or even recognizing PSGs defined by gender per se – in certain cases.[53] Moreover, because of other eligibility requirements beyond the PSG definition stage, decisions like these will not open the floodgates to intolerably large numbers of female refugees who fall into these broad PSGs.

The court’s decision in Cece is a sign that American asylum law is moving in the right direction with respect to broadly and simply defined gender-based PSGs. Although the court did not decide the question of whether gender per se can constitute a cognizable PSG (for it had no need to do so), this ruling is a clear stand in favor of the recognition of “gender plus” PSGs. Here, the cognizable PSG consisted of gender plus the elements of being young, single, and living alone in Albania. The court correctly asserted that “women who fear female genital mutilation,” a recognized PSG, and “women who fear prostitution,” are not so different.[54] Prostitution is arguably an equally cognizable harm as FGM. The fact that Cece is single, young, and living alone enhances her potential to be an ideal target for traffickers. These are the underlying characteristics that account for her fear.[55] Judge Easterbrook contended that Cece’s was an ineligible social group because even though the Board would probably acknowledge “Albanian women” as an element in a PSG, it would not recognize “single,” “young,” or “living alone” as such.[56] However, it would be unfair to claim that the Board would not recognize these elements simply because of the language used to describe Cece’s PSG.[57] By looking at the type of fear present in Cece’s PSG – fear of prostitution/trafficking – rather than the language used to describe it, Judge Rovner allowed the court’s decision to comply with the Board’s precedent of granting asylum to aliens with a well-founded fear of persecution based on a gender-based PSG. Asylum law, still a burgeoning area in the American legal field, benefits from such judicially preserved consistency as its case law continues to grow.

Cece is particularly illuminating for its firm distinction between the PSG and nexus requirements in asylum eligibility. Cece was such an ideal target for traffickers precisely on account of the fact that she was a young, single woman living alone. This was not just a group of young, single women living alone who all happened to be trafficked; it was a group of women who had been trafficked or feared being trafficked because they are young, single, and living alone in Albania. By failing to grasp this distinction, Judge Easterbrook did not give due regard to the nexus element of asylum. Consequently, his worry that certain gender-based PSGs are too broadly defined is hasty. Even a gender-based group that includes more members than Cece’s PSG would still have to pass the nexus requirement. In other words, members of that group would still have to fear persecution on account of the elements that define that group. As the Tenth Circuit explained in Niang v. Gonzalez, “[t]here may be understandable concern in using gender as a group-defining characteristic . . . But the focus with respect to such claims should be not on whether either gender constitutes a social group . . . but on whether the members of that group are sufficiently likely to be persecuted that one could say that they are persecuted ‘on account of’ their membership.”[58] This underscores the argument that concerns about overly broad or narrow PSGs should be addressed through other definitional criteria since PSG is only one element of asylum eligibility.[59] By principally defining Cece’s PSG as “women who fear prostitution,” Judge Rovner ensured that elements in Cece’s PSG definition would not be conflated with other requirements of refugee eligibility like nexus. Although she acknowledged the factors that made Cece’s fear well-founded, she did not attempt to stuff the PSG definition with reasons of why Cece’s PSG is persecuted; those reasons belong at the nexus stage of examining Cece’s claim.


            American asylum law scored a victory with the Cece decision. As recent global developments force more women to flee their countries and apply for asylum in the US, judicial recognition of more broadly and simply defined PSGs will grant stronger protection to those with eligible gender-based claims. Broader groups will help prevent conflation of PSG definitions with other requirements of refugee eligibility.  Decisions like the Second Circuit’s rejection of “women who were previously targeted for sex-trafficking by members of [a gang] and who arranged to escape and avoid capture” or the Sixth Circuit’s rejection of “women subjected to rape as a method of governmental control” in their applications for asylum may have turned out differently under broader gender-based PSG definitions sharply separated from other eligibility criteria.[60] Those women’s PSGs may very well have been defined, respectively, as “women who fear sex trafficking” and “women who fear rape.” I would posit that such groups of women at least arguably fall into fundamentally marginalized categories over which they have no control, thus making them precisely the candidates that American asylum law aims to protect. If these women have a good shot at proving their claims,[61] the judiciary should not let overly narrow, PSG definitions deprive them of asylum before they reach the subsequent stages of proving eligibility, such as the nexus stage.  Perhaps the above applicants’ claims would have failed even under broader PSG definitions, but policy-wise they should at least have been given an opportunity to present their arguments under more favorable conditions. The crimes committed against these women are so heinous that if American asylum law truly wishes to protect those persecuted for their membership in a particular social group, it should not let convoluted definitions distort the core underlying traits that define these groups.

After all, at least one circuit court has now agreed that Albanian women, like Cece, who fear prostitution deserve asylum. However, a narrower, more complex PSG definition in Cece’s case, much like the one she confronted in the Board’s decision, would have deprived her of the protection that she was later found to deserve. Thus where reasonable minds may support an applicant’s claim under a broad PSG definition, asylum law should encourage that definition. Law must evolve with the times. The global status of refugees is such that countless women suffer persecution, at least in part, precisely because they are women. A trend in asylum law that recognizes this inherently female tragedy and tries to better address it through broader PSG definitions would better reflect the current refugee situation.

Meanwhile, a continually complex asylum-seeking process – with its detailed list of further eligibility criteria – would ensure that only those women who truly satisfy asylum law objectives can take advantage of more simply defined PSGs. These further eligibility criteria will prevent the incoming of an intolerably large number of refugees.[62]  For example, even if the law allows for broader gender-based PSG eligibility, applicants will still have to pass the nexus requirement and prove that they have faced or fear facing persecution on account of the attributes that compose their PSG. Absence of state protection and infeasibility of internal relocation within the applicant’s home country are additional examples of criteria that an applicant’s claim will need to satisfy.  A more lenient approach at the PSG definition stage of the asylum application will not allow the applicant to avoid demonstrating that she also satisfies these other requirements.

Perhaps as courts see that such broad gender-based PSG definitions will not open the floodgates to masses of undeserving refugees spilling into the US, they will even become amenable to recognizing PSGs based on gender per se. After all, other parts of the world have found that “[w]omen in any society are a distinct and recognizable group; and their distinctive attributes and characteristics exist independently of the manner in which they are treated, either by males or by governments.”[63] It is time that American asylum law, too, recognizes that just as persecution may result from a person holding a certain political opinion or set of religious beliefs, living in some societies as a woman can also give rise to a well-founded fear of persecution.

[1] J.D., Harvard Law School, 2015.

[2] Deborah E. Anker, Law of Asylum in the United States 383 (Thomson Reuters et al. eds. (2013 ed.).

[3] INA § 101(a)(42)(A), 8 U.S.C.A. § 1101(a)(42). The other four eligible bases for persecution or a well-founded fear of persecution are race, religion, nationality, and political opinion. Id. See also Anker, supra note 1, at 46-7.

[4] Cece, 733 F.3d at 666.

[5] Id.

[6] Id.

[7] Id. at 667.

[8] Id. She suspected they were too afraid of Reqi. Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id. In addition to receiving asylum status, aliens may receive “withholding of removal,” which is another form of protection from return to persecution. Anker, supra note 1, at 8. However, withholding of removal does not provide a status in the US. Id. 

[13] Before coming to the US, Cece fraudulently procured an Italian passport and applied for US asylum under the Visa Waiver Program. Cece, 733 F.3d at 667. Although Judge Easterbrook’s dissent touches on this fraudulent procurement, this case comment focuses primarily on gender-based aspects of the case and will not discuss Judge Easterbrook’s argument. Cece, 733 F.3d at 683.

[14] Id.

[15] Id.

[16] Id. at 667. A 2004 US Department Report corroborated this testimony. Id.

[17] Id.

[18] Id.  In order to establish a well-founded fear of persecution, an alien does not have to demonstrate that her State is the persecutor. It is enough to show that the State is either unwilling or unable to protect her. Because the Board determined that Cece’s PSG was not cognizable (as discussed below), it did not reach the issue of whether Albania was unwilling or unable to protect her. Id. at 675-676.

[19] Id. at 668.

[20] Id.

[21] Id. The immigration judge, however, expressed concern with the Board’s conclusions – namely that Cece’s proposed social group was defined mostly by the harm inflicted on its members and that Cece had presented insufficient evidence that internal relocation was not reasonable.[21] Id.

[22] Id.

[23] Cece, 733 F.3d at 662.

[24] 8 U.S.C. § 1101(a)(42)(A).

[25] Cece, 733 F.3d at 668 (quoting Escobar v. Holder, 657 F.3d 537, 542 (7th Cir. 2011).

[26] Cece, 733 F.3d at 668; 8 C.F.R. § 1208.13(b)(1).

[27] Cece, 733 F.3d at 668.

[28] Id. (quoting Chevron, USA., Inc. v. Natural Resources Def. Council Inc., 467 U.S. 837, 842-3 (1984) (“If Congress has directly spoken to the precise question at issue, then a court must follow that clear guidance . . . If, however, the statute is silent or ambiguous, the court must defer to authoritative agency interpretations of the law)”.

[29] Cece, 733 F.3d at 669.

[30] Id.

[31] Id. This finding by the Board led it to hold that Cece’s PSG was not cognizable. Id.

[32] Id.

[33] Id. at 672.

[34] Id. at 672.

[35] Id. at 676.

[36] Id. at 669.

[37] Id. at 676.

[38] Id. at 677.

[39] Id.

[40] The court also overruled the Board’s determination that there was insufficient evidence to show that internal relocation was not a feasible means for Cece to avoid persecution. Id. Because this is not an issue raised by the PSG considerations that are the focus of this case comment, I will not address the internal relocation question in depth. Suffice it to say that the court remanded the internal issue relocation back to the Board to consider that Cece had only felt safe while living with her sister and that Albania was a small country for someone who is well known to Reqi to hide. Id. at 678.

[41] See id. at 680. Judge Manion also dissented, arguing that living alone is not an immutable characteristic, “young” is too subjective an adjective to define an element of a cognizable social group, that Cece suffered from general lawlessness in Albania rather than targeted persecution, and that there was sufficient evidence to show that she could have internally relocated. See id. at 683-8. Again, because this was not a gender-based argument, this case comment does not address this contention in depth.

[42] ANKER, supra note 1, at 410.

[43] See generally Anker, supra note 1, at 387-423.

[44] Anker, supra note 1, at 405.

[45] United Nations High Commissioner for Refugees, Guidelines on International Protection: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked at 2(HCR/GIP/06/07) (Apr. 7, 2006) available at

[46] Anker, supra note 1, at 423.

[47] 19 I. & N. Dec. 211, 233–34 (1985).

[48] 19 I. & N. Dec. 211, 233 (1985). (See also Mohammed v. Gonzalez, 400 F.3d 785, 797 (9th Cir. 2005) and Fatin v. I.N.S., 12 F.3d 1233 (3d Cir. 1993)).

[49] Cece, 733 F.3d at 669-70.

[50] Anker, supra note 1, at 387 and 405.

[51] Id.

[52] Anker, supra note 1, at 410.

[53] Id.

[54] Cece, F.3d at 672.

[55] Id.

[56] Cece, 733 F.3d at 681.

[57] Id. at 672.

[58] 422 F.3d 1187, 1199-1200 (10th Cir. 2005) (alluding to the nexus requirement).

[59] Anker, supra note 1, at 409.

[60] Id. at 408-9.  Lushaj v. Holder, 380 F. Appx. 41, 43 (2d Cir. 2010).  Kante v. Holder, 634 F.3d 321, 326-7 (6th Cir. 2011).

[61] And what constitutes “good” may certainly benefit from discussion among leading legal minds in American asylum law.

[62] Id. at 409.

[63] Id. at 406.  Re MN, Refugee Appeal No. 2039/93 (N.Z. R.S.A.A. 1996). (See also statements by the USCIS that “[w]omen hold a significantly different position in many societies than men. . . . Women may suffer harm solely because of their gender.” Anker, supra note 1, at 407).


Case Comment: McCormack v. Hiedeman

Case Comment

Abbey Marr*

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

Click here to access a PDF version of this case comment.

Within a political and legal landscape hostile to abortion rights,[1] the Ninth Circuit held in McCormack v. Hiedemann[2] that an Idaho law posed an undue burden to a woman’s right to an abortion by going so far as to make it a felony for a woman to obtain an abortion unless she obtained it from a physician in accordance with statutory requirements.[3] McCormack drew an important line in the sand and is a much needed “win” in the federal courts for abortion rights advocates. We should embrace it. Instead, national abortion rights advocates made little mention of the case publicly, both before and after the Ninth Circuit’s decision.[4] This is not surprising: McCormack pushes the limits of the prevailing “undue burden” standard to a precarious level. In reaching its holding, the court requires almost no proof that the challenged statute would actually constitute an undue burden to women, inviting a potentially dangerous rebuke from the Supreme Court.


The plaintiff in McCormack was a single mother of three whose only income was minimal child support.[5] She found herself pregnant in the fall of 2010, and knew that the travel cost from her home in southeastern Idaho to the nearest clinic in Salt Lake City, plus the expense of the procedure, was not something she could afford.[6] In her civil complaint, Jennie Linn McCormack stated that she believed she was in her first trimester, and she ingested medication abortion pills she had obtained online, which “she reasonably believed to have been prescribed” and sent to her “by a health care provider practicing outside Bannock County, Idaho.”[7] She was charged the next spring with violating Idaho Code §18-606, which makes it a felony for a woman to obtain an abortion outside of two exceptions laid out in Idaho Code §18-608: (1) by a physician in compliance with several requirements during the first trimester, or (2) in a hospital during the second trimester if it is judged to be “in the best medical interest of the woman.”[8] The charges were later dismissed without prejudice.[9] At that time, McCormack brought suit, challenging Idaho Code §18-606 as unconstitutional under Planned Parenthood v. Casey’s[10] “undue burden” standard.[11]

A. District Court Decision

Both the district court and Ninth Circuit decisions in McCormack were limited to the plaintiff’s motion for a preliminary injunction. At the same time that she filed her amended complaint, McCormack moved for a temporary order seeking to restrain the Bannock County prosecutor from criminally charging any woman for violating Idaho Code §18-606 while its constitutionality was decided, among other requests.[12] The district court granted a preliminary injunction preventing enforcement against any woman in Bannock County, because McCormack was “likely to succeed on the merits; … likely to suffer irreparable harm in the absence of preliminary relief; the balance of equities tips in her favor; and an injunction is in the public interest.”[13] The court found McCormack likely to succeed on the merits of her facial challenge to Idaho Code §18-606 because the law is unconstitutional under Planned Parenthood v. Casey.[14] Casey states that a restriction on abortion is facially unconstitutional if, “in a large fraction [of] cases in which the [statute] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.”[15] In the instant case, the district court found §18-606 to operate in just this way: “A woman is put to the Hobson’s choice of finding a means to police her healthcare provider’s actions, or being threatened with criminal prosecution for her healthcare provider’s failings. Faced with these two choices, a woman will likely choose not to have an abortion through an Idaho physician.”[16] Once reaching this decision, the court easily found that McCormack satisfied the other three prongs of the preliminary injunction test because of the possibility of being recharged for the crime, and the compelling public interest in women’s health as well as in not imposing “a statutory duty to police the actions of their healthcare providers” on women.[17]

B. Ninth Circuit Decision

Both parties appealed the district court’s preliminary injunction ruling. The prosecuting attorney, Mark Hiedeman, claimed that the district court applied the incorrect legal standard for a preliminary injunction, “based its decision on clearly erroneous facts,” and that the injunction was overbroad because it granted relief beyond McCormack.[18] On these claims, Judge Pregerson for the Ninth Circuit affirmed the district court’s preliminary injunction in part and reversed in part.[19] Judge Pregerson found first that the district court did not abuse its discretion in granting the preliminary injunction because it applied the correct legal standard with respect to McCormack’s constitutional challenge.[20] He noted that permissible abortion statutes have “traditionally criminalized the behavior of third parties to protect the health of pregnant women,” rather than women themselves, [21] and that 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.”[22] Further, Judge Pregerson agreed with the district court that putting the onus on a woman “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.”[23] In Judge Pregerson’s view, this undue burden is “yet another substantial obstacle in the already overburdened path” many women face, above and beyond the significant challenges posed by the cost, distance, and other practical realities of obtaining an abortion.[24]

Next, Judge Pregerson held that the district court did not base its decision on “clearly erroneous findings of fact.”[25] Hiedeman asserted that the district court did in fact do just that because there was no evidence that McCormack used “FDA approved” medication prescribed by a physician.[26] Judge Pregerson disagreed, because the facts stated in McCormack’s declaration and complaint—that the medication was “approved for use in the United States” and that the medications “are currently offered for sale over the internet by abortion providers outside southeast Idaho”—were enough to beat the “clearly erroneous” standard.[27] Finally, Judge Pregerson ruled that the preliminary injunction was overbroad, and limited it to “enforcement of the applicable sections against McCormack only,”[28] in order to be “no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”[29]

On cross-appeal, McCormack argued that the district court should have enjoined §18-608(2), relating to second trimester abortions, as well as §18-606 and §18-608(1).[30] In response, Judge Pregerson found that the district court should have enjoined §18-606 in conjunction with both §18-608(1) and §18-608(2), because the basis for enjoining §18-608(1) “applies with equal force” to §18-608(2)—the criminal complaint against McCormack did not cite under which section it was charging McCormack, nor did it make reference to what trimester she was in at the time of the abortion, so the threat of recharging could apply to either section.[31]


Judge Pregerson’s opinion for the Ninth Circuit is exciting for those who believe in a meaningful constitutional right to abortion, and his reasoning for why criminalizing women seeking abortions is unconstitutional includes a true understanding of the realities facing women who need abortions. However, after Jennie McCormack was charged, there was little interest from national pro-choice advocates in representing her in a civil suit, or supporting her once she filed.[32] This hesitance to bring attention to the case has remained since the Ninth Circuit’s decision, and is in keeping with abortion rights advocates’ deep fear of creating bad law. This fear is reasonable—the McCormack opinion is far from the norm on the federal bench, and the case’s vulnerability if challenged highlights the precarious position abortion rights face under the undue burden standard in its current iteration.

McCormack provides a rallying point for abortion rights advocates for two reasons. The decision includes a substantive discussion of the lived realities of poor and rural women who are seeking abortions. Judge Pregerson notes that having an abortion is complicated and full of obstacles to access the procedure, particularly for low-income and rural women grappling with the financial costs and long distances to travel, as well as the “harassment and hostility” of protesters outside clinics.[33] With a general trend on the federal bench to view the realities of women seeking abortions as an aside to the issue of abortion rights,[34] a discussion of poverty and lack of access to reproductive health care facilities is a welcome change. Second, McCormack was decided on the grounds that the Supreme Court has not authorized criminal prosecution of women for seeking abortions, and that the Idaho statute placed an onus on a woman to police her doctor at the risk of criminal charges.[35] This holding draws an important and powerful line in the sand: abortion statutes cannot criminally prosecute women seeking abortion care.

But abortion rights advocates are taking in this news quietly. Battle scarred in state houses[36] and lower courts,[37] and nervous about the tenuous five to four split of the Supreme Court,[38] national advocates can envision the Supreme Court using McCormack as an opportunity to walk back abortion rights more easily than we can see the potential of the line drawn by McCormack. This is primarily due to Ninth Circuit’s treatment of the undue burden standard.[39]

A. McCormack’s Reading of the Undue Burden Standard in Context

The court in McCormack is one of many lower courts to apply Planned Parenthood v. Casey’s undue burden standard, to varying effect. In Casey, the plurality reaffirmed the importance of promoting women’s health when regulating abortion, but it explicitly replaced Roe v. Wade’s[40] trimester framework for abortion regulations.[41] Rejecting a spousal notification requirement for women seeking abortions in Pennsylvania but upholding a 24-hour waiting period and mandatory counseling, the plurality found that an undue burden is created by a statute when “in a large fraction of the cases in which [the statute] is relevant, [it creates] a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”[42] The replacement of Roe’s trimester framework with the vaguer undue burden standard allowed for much more regulation of abortion,[43] and left room for lower courts to develop a wide, and often contradictory, range of interpretations of what constitutes a “substantial obstacle” in the path of a “large fraction” of cases.

Since Casey, the Supreme Court has revisited the undue burden standard in the abortion context several times. In Stenberg v. Carhart,[44] the Court gave the undue burden standard significant meaning when it held Nebraska’s criminal ban on certain abortion procedures unconstitutional because it imposed a burden on women’s ability to choose certain abortions.[45] The Court found this burden on certain types of abortion to impose, in effect, an undue burden on a woman’s choice itself.[46] With 2007’s Gonzales v. Carhart,[47] however, any “continuing commitment that the lives and health of women remain paramount over the State’s interest in restricting abortion”[48] was reduced significantly. In Gonzales, a post-Justice O’Connor Supreme Court found a national ban on a certain abortion procedure, which was extremely similar to the Nebraska law struck down in Stenberg, constitutional.[49] The court distinguished the national law from the law in Stenberg on the basis that it was less vague,[50] and stepped away entirely from the requirement that laws restricting abortion have a health exception.[51] Further, the Court declined even to reaffirm Casey’s limited reading of Roe v. Wade, choosing instead to “accept as controlling” Casey’s principles.[52] As a result, Gonzales has been seen as a big retreat from any larger frame that women’s rights and health are primary considerations in analyzing abortion regulations under Casey’s undue burden standard at all.[53]

In light of the Supreme Court’s confusing treatment of Casey, it is still an open question to lower courts what constitutes a “substantial obstacle” for a “large fraction” of women under Casey.[54] McCormack reads these requirements to create a low bar: the decision does not discuss whether or not a “large fraction” of women is affected by the Idaho statute, and determines that the statute creates a “substantial obstacle” because it requires women seeking abortions to act in one of three ways: “(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.”[55] The court did not require any showing about whether the statute would dissuade or prevent any women from having an abortion at all, putting it at the liberal edge of lower courts’ readings of the undue burden requirements.[56] For example, while the court in Tuscon Women’s Clinic v. Eden [57] acknowledged the larger context of economic realities and women’s equality as affecting women’s ability to access abortion, it also found that a context-specific inquiry into the increased costs a regulation posed to women seeking abortions was necessary to determine whether that regulation posed a substantial obstacle to women, and therefore an undue burden.[58] In Isaacson v. Horne,[59] the district court was not even persuaded by evidence that that a statute would make some women’s choices harder.[60]

Unlike McCormack in their willingness to find abortion restrictions constitutional and unlike Tuscon in their disinterest in conducting a fact-specific review of statutes to determine whether they meet the undue burden standard, some lower courts outside the Ninth Circuit have simply assumed that mandatory waiting periods and “counseling” requirements are presumptively valid if they resemble Pennsylvania’s in Casey, without engaging in new analysis based on whether or not those types of restrictions pose a substantial obstacle to the populations affected in the new cases.[61] And even farther on the spectrum from McCormack, many other lower courts have required incredibly extensive proof of the parts of the undue burden test, “often requiring litigants to establish their case to a statistical certainty[;] . . . disregard[ing] testimony illuminating how restrictions will affect disadvantaged women; filter[ing] evidence of extreme hardship through the lens of privilege [or] fail[ing] to consider how challenged restrictions will operate when compounded by other restrictions.”[62]

B. Moving Forward Within this Framework

Abortion rights activists fear bringing up any large abortion rights questions recently because “Roe . . . seems to be in perpetual and great danger of being overturned,”[63] particularly in light of Casey and its progeny in the Supreme Court and lower courts. McCormack’s holding that it is unconstitutional to criminally prosecute women for seeking abortions inconsistent with a state regulation, and its solid stance as a decision with one of the most liberal readings of the undue burden standard in lower courts across the country, make it just the type of bold statement that advocates are afraid of arguing in front of the Supreme Court. Within a regime ruled by the “undue burden” standard and federal courts that tend to read this standard as setting a relatively high bar, this wariness is not surprising. Going forward, however, if abortion rights advocates want to push back at abortion restrictions, we have two choices: continue to be controlled by the unfriendly “undue burden” standard, or be willing to push creative arguments and work with decisions like McCormack that seek to stretch the boundaries of undue burden while risking vulnerability to rebuke.

* J.D. Candidate, Harvard Law School, Class of 2014.

[1] Over the past several years, state houses across the country passed record numbers of abortion restrictions. This trend peeked with 135 abortion restrictions enacted in 36 states in 2011. States Enact Record Number of Abortion Restrictions in 2011, Guttmacher Institute (January 5, 2012), [hereinafter “Guttmacher”]. Increasingly, prosecutors have also brought the debate to criminal law, charging women with murder after they suffer stillbirths, or with child endangerment for using drugs while pregnant. See, e.g., Ed Pilkington, Outcry in America as pregnant women who lose babies face murder charges, The Guardian (June 24, 2011, 1:30 PM),; Seth Burkett and Ben Montgomery, Pregnant on Drugs, The Decatur Daily (Nov. 1, 2012),,106390.

[2] 694 F.3d 1004 (9th Cir. 2012).

[3] Id. at 1024.

[4] See Jessica Robinson, Idaho Woman Arrested for Abortion is Uneasy Case for Both Sides, NPR (Apr. 9, 2012),; Nancy Haas, The Next Roe v. Wade? An Abortion Controversy in Idaho Inflames Debate, The Daily Beast (Dec. 12, 2011, 12:00 AM), National Advocates for Pregnant Women, Legal Voice, and the Center for Reproductive Rights did quietly file an amicus brief on appeal, but the case was barely noted on any of their websites. See Idaho Amicus Jennie McCormack Case, National Advocates for Pregnant Women, (Feb. 15, 2012),; Legal Voice,; Center for Reproductive Rights,

[5] Id. at 1007.

[6] Id. at 1007–08.

[7] Id. at 1008. Due to the case’s preliminary injunction status and the facial nature of the constitutional challenge, the record excludes many additional facts that are commonly known about the case. McCormack was actually 20 weeks along in her pregnancy. As a result, she expelled a fetus when she aborted. She panicked and hid the fetus on her back porch, and was turned in by a friend’s sister. Since being charged, she has been entirely shunned by her community. See Robinson, supra note 4; Haas, supra note 4.

[8] McCormack, 694 F.3d at 1009.

[9] Id. at 1008.

[10] 505 U.S. 833 (1992).

[11] See id. at 1009–10. McCormack also challenged the constitutionality of the “Pain-Capable Unborn Child Protection Act,” Idaho Code Ann. §§ 18-505–18-508 (2012) (“PUCPA”). However, the Ninth Circuit upheld the district court’s ruling that McCormack did not have standing to pursue such a challenge, and her PUCPA claim will not be discussed in this case comment. For a discussion of McCormack’s PUCPA claim, see McCormack, 694 F. 3d at 1022–23.

[12] McCormack, 694 F. 3d at 1009. McCormack’s “other requests” related to her PUCPA claims, discussed supra note 11.

[13] McCormack v. Hiedeman, No. 4:11-cr-003970BLW, 2011 WL 4436548, at *6 (D. Idaho Sept. 23 2011).

[14] Id. at *6-7.

[15] Id. (citing Casey, 505 U.S. at 895).

[16] Id. at *7.

[17] Id. at *8.

[18] McCormack, 694 F.3d at 1009–10.

[19]  Id. at 1007.

[20]  Id. at 1010.

[21]  Id. at 1011.

[22]  Id. at 1012.

[23] Id. at 1016.

[24] Id.

[25] Id. at 1018.

[26] Id.

[27] Id.

[28] Id. at 1019.

[29] Id. (internal quotations omitted).

[30] Id. at 1010.

[31] Id. at 1020.

[32] See Robinson supra note 4; Haas, supra note 4.

[33] McCormack, 694 F.3d at 1017 (internal quotations omitted).

[34] “For once it was the plight of the pregnant woman, and not the state’s interest in policing her pregnancy, that caught the court’s attention.” Jessica Mason Pieklo, Finally a Limit is Reached: Ninth Circuit Rules McCormack Can’t be Prosecuted for her Abortion, RhRealityCheck (Sept. 12, 2012 7:24 AM),

[35] McCormack, 694 F.3d at 1018.

[36] See Guttmacher, supra note 1; Haas, supra note 4 (“Spooked by the recent strong challenge in Congress to federal funding for Planned Parenthood, pro-choicers are wary about mounting legal challenges to state restrictions, for fear those challenges would end up in front of an inhospitable Supreme Court.”)

[37] See, e.g., Irin Carmon, Judges Go Wild on Abortion (Jul. 27, 2012, 1:47 pm),

[38] Robin West, From Choice to Reproductive Justice: Deconstitutionalizing Abortion Rights, 118 Yale L.J. 1394, 1400 (2009).

[39] Other possible factors in advocates’ hesitance to embrace McCormack loudly are the plaintiff’s facts, discussed supra note 7, which could be seen as less than savory in the eyes of a court and the media. Any effect the disgust of a judge would have is hard to measure because the case is a facial challenge at the preliminary injunction stage. However, as cases are often as much about public opinion and messaging as they are about winning in court, this potential “ick” factor is not to be ignored.

[40] 410 U.S. 113 (1973).

[41] 505 U.S. at 873. (“We reject the trimester framework, which we do not consider to be part of the essential holding of Roe.”)

[42] Id. at 878. It was this prong of Casey’s undue burden standard that Judge Pregerson relied on in McCormack, but Casey also gave the test a second prong: the regulation in question could not have the purpose of creating an undue burden on a woman’s right to abortion, even if it did not have that effect. Id. at 877 (“A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it”).

[43] Id. at 872. (“A framework of [Roe’s] rigidity was unnecessary and in its later interpretation sometimes contradicted the State’s permissible exercise of its powers”).

[44] 530 U.S. 914 (2000).

[45] Id. at 930.

[46] Id.

[47] 550 U.S. 124 (2007).

[48] Linda J. Wharton et. al., Preserving the Core of Roe: Reflections on Planned Parenthood v. Casey, 18 Yale J.L. & Feminism 317, 337 (2006) (discussing the principles of Planned Parenthood v. Casey, 505 U.S. 833 (1992)).

[49] Gonzales, 550 U.S. at 168. The act challenged in Gonzales prohibited dilation and evacuation abortion procedure, the same type of procedure targeted by the Nebraska statute. Id. at 132–33.

[50] Id. at 141–42.

[51] Martha K. Plante, “Protecting” Women’s Health: How Gonzales v. Carhart Endangers Women’s Health And Women’s Equal Right to Personhood Under the Constitution, 16 Am. U. J. Gender Soc. Pol’y & L. 387, 395 (2008).

[52] Gonzales, 550 U.S. at 156, as cited in Cynthia D. Lockett, The Beginning of the End: The Diminished Abortion Right Following Carhart and Planned Parenthood, 11 J. Gender, Race & Just. 337, 356 n. 156 (2008).

[53] Plante, supra note 51, at 395.

[54] Wharton, supra note 48, at 353.

[55] McCormack, 694 F.3d at 1016.

[56] Id.

[57] 379 F.3d 531 (9th Cir. 2004).

[58] Id. at 531, 549.

[59] No. CV–12–01501–PHX–JAT, 2012 WL 3090247 at *8 (D. Ariz. July 30, 2012).

[60]  Id. (“While H.B. 2036 may prompt a few women, who are considering abortion as an option, to make the ultimate decision earlier than they might otherwise have made it, H.B. 2036 is nonetheless constitutional because it does not prohibit any woman from making the ultimate decision to terminate her pregnancy”).

[61] Wharton, supra note 48, at 357–60.

[62] Id. at 353–54.

[63] West, supra note 38.