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US appeals court takes issue with some Idaho abortion laws

A U.S. appeals court on Tuesday said an Idaho woman who aborted her pregnancy by taking pills instead of traveling to a clinic or hospital as required by state law should not have been criminally charged.

In the same opinion, the 9th U.S. Circuit Court of Appeals court upheld a U.S District Court decision that ruled the woman could not challenge an Idaho state law that bans most abortions after 19 weeks under the premise that fetuses feel pain at that stage of development.

In 2010, Jennie Linn McCormack, an unmarried mother of three, was pregnant, unemployed and receiving between $200 and $250 a month in child support, according to the court opinion.

McCormack searched for an abortion provider but there were none in Bannock County, where she lived, the court opinion said, adding in a footnote that 87 percent of counties in the U.S. do not have abortion providers.  

She knew she could get an abortion in Salt Lake City, Utah, about 138 miles away, but the procedure would cost between $400 and $2,000, the opinion said.

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Instead McCormack chose RU-486, a medication that induces an abortion, which she ordered online. The drug is approved for use by the U.S. Food and Drug Administration and can be prescribed over the Internet. The drug is for early pregnancies, however, and McCormack was much farther along.

She confided in a friend, and that friend's sister tipped off police, National Public Radio reported. Police found the fetus wrapped up on her back porch.

McCormack was charged by Bannock County prosecutors last year under a 1972 Idaho law that requires abortions be performed by a physician at a licensed abortion facility. If convicted, she would have faced up to five years in prison.

“There are many cases where they prosecute or threaten to prosecute a doctor," Richard Hearn, McCormack's attorney, told NPR. "There are not so many where they’ve prosecuted a woman.”

Around the time of her arrest, Idaho passed a statute making it illegal for women to obtain abortions after their 19th week of pregnancy, the AP reported. In the Pain-Capable Unborn Child Protection Act, lawmakers argued that fetuses start feeling pain around 20 weeks.

McCormack was not charged under this statute, although she did challenge it in her lawsuit.

Read the appeals court opinion (.pdf)

The criminal case against McCormack was dismissed and on Sept. 16, 2011, she filed a broad lawsuit claiming that Idaho's abortion law is unconstitutional because it places an undue burden on women, which flies in the face of the Supreme Court's Roe v. Wade, which legalized abortion in the U.S.

An Idaho federal judge issued an injunction saying the law could not be enforced against McCormack.

In its opinion, the 9th Circuit largely agreed with McCormack and her counsel. Criminal abortion statutes typically apply to doctors, who perform unhealthy abortions that threaten women's safety, the unanimous three-judge panel said.

Further, Idaho's law is at odds with Roe v. Wade, the judges said, because pregnant women should not be criminally charged nor expected to “explore the intricacies of state abortion statutes."

Under the law, they said, women in McCormack's position have three choices: To carefully read Idaho law, violate the law or not get an abortion.

The opinion also points to a letter the state's attorney general wrote about the abortion law, in which he says the law "plainly intends to erect a substantial obstacle to the right to choose."  

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At this point in the litigation, only McCormack cannot be prosecuted -- not women generally, the court said. McCormack may ultimately get a judgment that strikes down the law entirely, the 9th Circuit said.

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