McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012).
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Within a political and legal landscape hostile to abortion rights, the Ninth Circuit held in McCormack v. Hiedemann 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. 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. 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.
I. SUMMARY OF CASE
The plaintiff in McCormack was a single mother of three whose only income was minimal child support. 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. 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.” 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.” The charges were later dismissed without prejudice. At that time, McCormack brought suit, challenging Idaho Code §18-606 as unconstitutional under Planned Parenthood v. Casey’s “undue burden” standard.
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. 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.” 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. 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.” 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.” 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.
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. On these claims, Judge Pregerson for the Ninth Circuit affirmed the district court’s preliminary injunction in part and reversed in part. 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. 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,  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.” 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.” 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.
Next, Judge Pregerson held that the district court did not base its decision on “clearly erroneous findings of fact.” 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. 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. Finally, Judge Pregerson ruled that the preliminary injunction was overbroad, and limited it to “enforcement of the applicable sections against McCormack only,” in order to be “no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”
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). 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.
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. 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. 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, 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. 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 and lower courts, and nervous about the tenuous five to four split of the Supreme Court, 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.
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 trimester framework for abortion regulations. 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.” The replacement of Roe’s trimester framework with the vaguer undue burden standard allowed for much more regulation of abortion, 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, 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. The Court found this burden on certain types of abortion to impose, in effect, an undue burden on a woman’s choice itself. With 2007’s Gonzales v. Carhart, however, any “continuing commitment that the lives and health of women remain paramount over the State’s interest in restricting abortion” 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. The court distinguished the national law from the law in Stenberg on the basis that it was less vague, and stepped away entirely from the requirement that laws restricting abortion have a health exception. Further, the Court declined even to reaffirm Casey’s limited reading of Roe v. Wade, choosing instead to “accept as controlling” Casey’s principles. 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.
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. 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.” 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. For example, while the court in Tuscon Women’s Clinic v. Eden  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. In Isaacson v. Horne, the district court was not even persuaded by evidence that that a statute would make some women’s choices harder.
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. 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.”
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,” 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.
 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), http://www.guttmacher.org/media/inthenews/2012/01/05/endofyear.html. [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), http://www.guardian.co.uk/world/2011/jun/24/america-pregnant-women-murder-charges; Seth Burkett and Ben Montgomery, Pregnant on Drugs, The Decatur Daily (Nov. 1, 2012), http://decaturdaily.com/stories/Pregnant-on-drugs,106390.
 694 F.3d 1004 (9th Cir. 2012).
 See Jessica Robinson, Idaho Woman Arrested for Abortion is Uneasy Case for Both Sides, NPR (Apr. 9, 2012), http://www.npr.org/templates/story/story.php?storyId=150312812; Nancy Haas, The Next Roe v. Wade? An Abortion Controversy in Idaho Inflames Debate, The Daily Beast (Dec. 12, 2011, 12:00 AM), http://www.thedailybeast.com/newsweek/2011/12/11/the-next-roe-v-wade-jennie-mccormack-s-abortion-battle.html. 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), http://advocatesforpregnantwomen.org/issues/in_the_states/idaho_amicus_jennie_mccormack_case.php; Legal Voice, www.legalvoice.org/news/; Center for Reproductive Rights, www.reproductiverights.org.
 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.
 McCormack, 694 F.3d at 1009.
 505 U.S. 833 (1992).
 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.
 McCormack, 694 F. 3d at 1009. McCormack’s “other requests” related to her PUCPA claims, discussed supra note 11.
 McCormack v. Hiedeman, No. 4:11-cr-003970BLW, 2011 WL 4436548, at *6 (D. Idaho Sept. 23 2011).
 Id. (citing Casey, 505 U.S. at 895).
 McCormack, 694 F.3d at 1009–10.
 Id. (internal quotations omitted).
 See Robinson supra note 4; Haas, supra note 4.
 McCormack, 694 F.3d at 1017 (internal quotations omitted).
 McCormack, 694 F.3d at 1018.
 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.”)
 Robin West, From Choice to Reproductive Justice: Deconstitutionalizing Abortion Rights, 118 Yale L.J. 1394, 1400 (2009).
 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.
 410 U.S. 113 (1973).
 505 U.S. at 873. (“We reject the trimester framework, which we do not consider to be part of the essential holding of Roe.”)
 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”).
 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”).
 530 U.S. 914 (2000).
 550 U.S. 124 (2007).
 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)).
 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.
 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).
 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).
 Plante, supra note 51, at 395.
 Wharton, supra note 48, at 353.
 McCormack, 694 F.3d at 1016.
 379 F.3d 531 (9th Cir. 2004).
 No. CV–12–01501–PHX–JAT, 2012 WL 3090247 at *8 (D. Ariz. July 30, 2012).
 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”).
 Wharton, supra note 48, at 357–60.
 West, supra note 38.