Federal Court Opens Thorny Questions over Abortion in Overturning Idaho Pro-Life Laws

AP Photo/Pablo Martinez Monsivais
AP Photo/Pablo Martinez Monsivais

A recent federal appeals court decision striking down an Idaho pro-life law wades into the very stickiest parts of the abortion wars in the United States.

The case highlights the controversial question of prosecuting women as opposed to doctors for committing abortion, the dangers of self-medication now available to pregnant women because of the easy online availability of abortion drugs, and the wave of new legislation banning abortion after the 20th week of gestation.

In 2011 Jennie Linn McCormack was charged for aborting her own child in violation of a 1972 law forbidding self-abortion.

McCormack says she needed to self-abort because she was not able to drive the two hours to Salt Lake City from her home in Pocatello, Idaho, and she also feared the cost of aborting her child was beyond her abilities. So, she asked her sister in Mississippi to buy the abortion drug for her online that she proceeded to use at home.

The abortion drug is not supposed to be used exclusively at home. It is a three-step process that includes taking the first dose in a doctor’s office, the second dose at home ,and then an office visit to ensure the pregnancy has ended. Using it without a doctor’s supervision is fraught with danger.

McCormack took the drug and delivered a dead child of between 19 and 23 weeks old, well beyond the 9 weeks the FDA approved it for use. In fact, using RU-486 after 9 weeks is dangerous, but such are the dangers of a drug that can be bought online and self-administered.

McCormack was rightly distressed by the size of the child she delivered, so she wrapped the child in a blanket and put him in a freezer on her back porch. A friend of a friend called the police, and McCormack was arrested and prosecuted for performing an abortion on herself in violation of the 1972 law.

At the time pro-life leaders actually complained about the prosecution. Pro-life groups oppose the prosecution of women, favoring instead the prosecution of abortionists. Pro-lifers consider women to be the victims of abortion. Marjorie Danenfelser said at the time that the prosecution was “not acceptable. We do not think women should be criminalized. Criminal sanctions or any kind of sanctions are appropriate for abortionists, and not for women.”

The charges against McCormack were dropped for lack of evidence, but her attorney initiated a class action lawsuit on behalf of rural women who might have a hard time getting to largely urban-based abortion clinics.

Her attorney said the suit included the twenty-week abortion ban even though it had not been in force at the time of her abortion and therefore she was prosecuted under an entirely different law. He included it in the suit because, he said, it also hinders a woman’s ability to get a constitutionally protected abortion.

Last week the United States Court of Appeals for the Ninth Circuit struck down the Pain-Capable Unborn Child Protection Act which the Idaho governor signed into law in April 2011. The Court struck down several other laws, too, including the 1972 law that McCormack violated along with a law requiring all second trimester abortion be performed in hospitals and a law requiring abortion clinics to adhere to standards of surgical clinics.

The decision effects Washington, California, Idaho, Montana, Nevada, Arizona, Alaska, and Hawaii. The 9th Circuit is considered the most liberal federal court and is also the court that is most overturned by the Supreme Court.

A number of these 20-week abortion bans have passed around the country, and some of them have been challenged. A 20-week ban just passed the House of Representatives. They are based on the proposition that an unborn child begins to feel pain at 20 weeks of gestation. These laws run into the Supreme Court rulings that abortion is allowed up to viability and then regulated, at least theoretically, after that. These bans have been challenged on the viability question.

The 20-week bans will no doubt end up in the Supreme Court. 

Follow Austin Ruse on Twitter @austinruse.