Federal Court Rejects Idaho's Claim That it May Punish Women Who End Their Pregnancies

Last year, NAPW published an article called Missed Opportunities in McCorvey v. Hill: The Limits of Pro-Choice Lawyering, looking at the ways in which abortion litigation has been done in the past, and could be done more effectively in the future. NAPW wanted to make sure that the case of Jennie McCormack, a woman arrested for having an "illegal" abortion in Idaho, was not yet another missed opportunity.

As a result, when Ms. McCormack was arrested, we immediately reached out to her attorney, Richard Hearn. NAPW then worked with sister organizations Legal Voice and the Center for Reproductive Rights to file a "friend of the court" brief supporting Jennie McCormack in McCormack v. Hiedeman. Kathleen O'Sullivan, Breena Roos, and Ashley Locke of the law firm Perkins Coie LLP represented our organizations in filing this brief.

Our amicus brief highlighted the fact that punishing third parties for performing illegal abortions is different - historically, constitutionally, and physically - from punishing the pregnant woman herself. We also reminded the court that women alone bear the risks to life and health that pregnancy creates. And, we emphasized that advocates who seek to overturn Roe v. Wade consistently claim that the laws re-criminalizing abortion will not be used to prosecute and punish the women who have them.

On September 11, 2012, in the first decision of its kind, the U.S. Court of Appeals for the Ninth Circuit issued an opinion that addressed whether states may use their existing criminal abortion laws to arrest and prosecute women who have abortions. In this case the charges against Ms. McCormack had been dropped for lack of evidence, but the state threatened to reinstate them if more evidence became available, and argued that it had the right to punish any woman who self-induced an abortion.

Ms. McCormack filed suit in federal district court to enjoin the state from using Idaho Code § 18- 608A ("it is unlawful for any person other than a physician to cause or perform an abortion"), § 18-606(2) (Idaho's pre-Roe law stating "every woman who knowingly submits to an abortion or solicits of another, for herself, the production of an abortion, or who purposely terminates her own pregnancy otherwise than by a live birth, shall be deemed guilty of a felony. . ") and §18-5-505-507 (the newly-enacted "Pain-Capable Unborn Child Protection Act," a ban on all non-therapeutic abortions after 20 weeks) to prosecute Ms. McCormack and other women in the future under these laws. The district court granted a preliminary injunction as to the "physician only" and the "woman herself" provisions, and the State appealed.

Using strong language, the Court of Appeals upheld a preliminary injunction that prevents the state from prosecuting Ms. McCormack under Idaho Code §18-606 and §18-608, finding that she was likely to succeed on her constitutional challenge to Idaho's criminal abortion law as a mechanism for locking up women who have had abortions. The court ruled that she did not have standing to challenge the Pain-Capable Unborn Child Protection Act.

The Court's opinion specifically relied on arguments from our brief that acknowledged 1) that earlier decisions that allowed states to restrict the provision of abortion services to doctors did not address the question of whether women themselves could be locked up, 2) that third parties who perform abortions on women are not the same as the women themselves, and 3) that an overriding historical purpose for regulating abortion has been to protect - not arrest - women.

The court took pains to acknowledge the barriers that women, especially low-income women, face in obtaining abortion services, including lack of providers, financial obstacles, and harassment at clinics. The opinion also acknowledged the practical realities of Ms. McCormack's life and the medical, moral, and ethical decision-making women engage in when making decisions about the pregnancies.

We take special note of the fact that despite leading 'pro-life' organizations' repeated assurances that that their efforts will not result in women going to jail, none opposed the arrest of Ms. McCormack. NAPW's views were featured in this RH Reality Check report on the decision.