In May 2011, Jennie Linn McCormack was charged with violating an Idaho law making it a felony for any woman to undergo an abortion in a manner not authorized by statute. The 9th Circuit Court of Appeals has recently upheld the U.S. District Court for the District of Idaho’s grant of a preliminary injunction restraining enforcement of the statute under which McCormack was charged.
McCormack’s crime, according to prosecutor Mark Heideman, was that she used medication legally prescribed by a physician on the Internet to induce abortion. McCormack pursued this option because there were no abortion providers in the eight southeastern Idaho counties proximate to her home, and the cost of traveling 138 miles to a provider Salt Lake City, Utah was beyond her means.
Idaho’s abortion statute is unusual in that it expressly permits prosecution of pregnant women who pursue illegal abortions, rather than being limited to third-party abortion providers. Hiedeman contended that his prosecutorial authority under the statute was valid, arguing that the health and safety justifications for criminalizing illegal abortions are just as relevant when the responsible actor is the pregnant woman herself. The 9th Circuit disagreed. It noted that abortion laws have historically been aimed at protecting women from unqualified abortion providers, and that most statutory and common law precedents exempt women from liability for actions taken in connection with abortion. Judge Pregerson supported the validity of McCormack’s claim that prosecuting pregnant women for illegal abortion poses an undue burden on reproductive choice in that it requires women to police their providers’ compliance with abortion laws.
The 9th Circuit’s ruling seems to comport with the widespread public view that prosecution of women is not the right way to combat the abortion problem. Indeed, few pro-life advocates are willing to openly admit that they support prosecution of women who seek abortions. But is this a logical conclusion, or merely a political concession? If the purpose of restricting certain kinds of reproductive medical procedures is to protect the state’s interest in fetal life, is there any reason to exempt pregnant women from prosecution? And what implications, if any, does one’s conclusion on this point have on issues such as the prosecution of pregnant drug users, legal interventions for obese mothers, and the like? I’m curious to hear your thoughts.
