Jennie McCormack v. Stephen Herzog

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 McCor-mack 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 Hiede-man, filed a…