U.S. Circuit Court Set To Hear Challenge to Idaho Abortion Law

June 19, 2012 — The 9th U.S. Circuit Court of Appeals on July 9 is scheduled to hear a case that challenges the constitutionality of an Idaho law that makes it illegal for state residents to obtain medication abortion drugs from out-of-state doctors through the Internet, the Los Angeles Times reports.

The case centers around Jennie McCormack, who was arrested in January for ending her pregnancy at 20 weeks by using abortion medication her sister obtained through the Internet, according to the Times.

Mark Hiedeman, the prosecuting attorney for Bannock County, Idaho, filed felony charges against McCormack for violating a 1972 state law that says a physician must perform abortion care and that abortion in the second trimester must be performed in a hospital. State Deputy Attorney General Clay Smith said in a brief that McCormack "engaged in the abortion equivalent of self-help, and ... neither consulted with a physician about her pregnancy nor even knew the identity of the (medication's) provider."

McCormack filed suit, and U.S. District Judge Lynn Winmill issued a preliminary injunction until the constitutionality of the law is resolved in federal court.

Groups on both sides of the abortion debate are uncomfortable with the case, according to the Times. Groups opposing abortion rights typically target abortion doctors, not women. Meanwhile, McCormack "is far from the ideal plaintiff" for abortion-rights supporters, according to the Times. If the case would reach the Supreme Court, it would not be likely to "shore up Roe vs. Wade," the Times reports. The Center for Reproductive Rights, National Advocates for Pregnant Women and Legal Voice filed a friend-of-the-court brief on McCormack's behalf, pointing out that the courts generally have seen abortion regulations as protecting women.

"The reality for women like Jennie in states like Idaho is they do not have options. They do not have access. So we really see it as important to try to hold the line," Janet Chung, a Legal Voice attorney, said. McCormack lives in a conservative part of Idaho and abortion providers were several hours away. At the time she became pregnant, she was unemployed and had three children.

According to the Times, the case is the most significant constitutional legal challenge to so-called "fetal pain" laws, which have been adopted by Idaho and at least five other states. McCormack's lawyer, Richard Hearn, who is also a physician, has entered the case as a plaintiff himself. Hearn said he hopes the move will enable him to challenge Idaho's fetal pain law.

"It doesn't do women any good to have a right to get an abortion if a state can punish any doctor who does it. If there are doctors who will prescribe these pills in California, let the women in Idaho utilize them without having to fly to Los Angeles, because a lot of women like Jennie can't afford to go where those providers are" (Murphy, Los Angeles Times, 6/16).