Constitutional Law

9th Circuit Bars Prosecution of Woman for Alleged Medication-Induced Abortion

An Idaho law that provides for criminal charges against women who take pills to terminate their pregnancies is likely unconstitutional, according to a federal appeals court.

The San Francisco-based 9th U.S. Circuit Court of Appeals upheld an injunction barring the prosecution of Jennie Linn McCormack, who was accused of buying medication over the Internet to induce an abortion, report the Recorder, the Wall Street Journal Law Blog, Reuters and the Associated Press. However, the court said the injunction was overbroad and could not prevent prosecutions of other women at this point in the litigation.

Idaho law says abortions must be performed in the first trimester by physicians in a hospital, doctor’s office or clinic.

“There can be no doubt that requiring women to explore the intricacies of state abortion statutes to ensure that they and their provider act within the Idaho abortion statute framework, results in an ‘undue burden’ on a woman seeking an abortion of a nonviable fetus,” the court said in its opinion (PDF).

“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.”

McCormack’s lawyer, Rick Hearn, is also a plaintiff in the litigation. He is also a physician and is challenging another Idaho law that bars abortions after 20 weeks because of the premise that the fetus can feel pain at that point, the AP story says. The appeals court said McCormack didn’t have standing to challenge the fetal pain provisions, but Hearn’s challenge continues, the story says.

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