Two years ago, an Idaho woman named Jennie Linn McCormack became pregnant. McCormack lives off of no more than $250 a month in child support payments, the nearest abortion clinic to her home is nearly 140 miles away in Salt Lake City, Utah, and it would charge up to $2000 to perform an abortion. So when she decided to terminate her pregnancy, she obtained an abortion-inducing medication online. After she took the drug, McCormack found herself being prosecuted for violating an Idaho law making it a felony for a woman to “terminate her own pregnancy otherwise than by a live birth.”
In a unanimous decision joined by Reagan-appointed Judge Donald Walter, the U.S. Court of Appeals for the Ninth Circuit blocked Idaho from resuming this prosecution, which had previously been dismissed by a court order that also gave prosecutors the option of refiling against McCormack. Significantly, the Ninth Circuit’s opinion strongly suggests that any attempt to prosecute a woman who obtains an abortion — as opposed to the provider who authorizes or proscribes the procedure — is unconstitutional:
Most modern state criminal statutes continue to apply criminal liability to third parties who perform abortion in a manner not proscribed by the statute. These statutes, known as physician-only statutes, impose criminal liability on anyone other than a licensed physician from performing abortions. But many of these same criminal statutes expressly exempt women from criminal liability for obtaining an abortion and do not hold them liable for actions or inactions that affect their pregnancy outcomes. When state statutes do not expressly exempt pregnant women, state courts interpreting them have concluded that pregnant women are exempt from criminal prosecution . . . . Consistent with this history, 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. . . .
While the Supreme Court has permitted many restrictions that make obtaining an abortion more difficult, particularly for low-income women, it has not authorized the criminal prosecution of women seeking abortion care. Imposing criminal liability upon women for their providers’ purported failure to comply with state abortion regulations places a substantial obstacle in the path of women seeking an abortion. Accordingly, McCormack is likely to succeed on her claim that Chapter 6 constitutes an undue burden on a woman’s constitutional right to terminate her pregnancy before viability.
Because this case is still at an early stage in the litigation, the court refrained from saying that Idaho can never prosecute a woman under this statute again — yesterday’s order applies only to McCormack. Barring intervention by a higher court, however, it is likely that the Idaho law authorizing women to be targeted will eventually be struck down completely.