Category: Nadia Sawicki

9th Circuit: Prosecution of Women Seeking Illegal Abortions Likely Unconstitutional

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By Nadia N. Sawicki

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.

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Tobacco Labeling and the Ethics of Persuasion

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by Nadia N. Sawicki

The D.C. Circuit’s recent decision vacating the FDA’s graphic labeling requirements has prompted a flood of valuable commentary about compelled speech doctrine, including Richard Epstein’s, below.  While analysis of the First Amendment issues is important, I view the R.J. Reynolds case instead as an example of how emphasis on formal legal arguments may detract attention from the underlying source of public opposition.

My current research focuses on the state’s use of emotionally-gripping graphic imagery in medical and public health contexts. I focus on two examples – the “fear appeal,” exemplified by the FDA’s graphic tobacco labeling requirements; and appeals to positive emotions, such as maternal bonding, exemplified by state laws requiring that women view ultrasound images and hear the heartbeat of their own fetus before consenting to an abortion.

Both types of appeals to emotion have faced constitutional challenges – as violations of First Amendment compelled speech doctrine, or imposition of undue burdens on reproductive liberty interests.   But these formalistic constitutional tests do not, in my opinion, get at the heart of the public’s concern about government persuasion using emotional imagery.  Few contemporary commentators are willing to challenge requirements for scientifically valid textual warnings. Rather, it is the use of images – diseased lungs, cadavers, fetal heartbeats – that strikes a chord of concern among many critics.  Whether designed to inspire fear, love, or disgust, the government’s use of these images to persuade seems to run counter to the principles of democratic discourse.

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