Idaho woman’s case marks a key abortion challenge
POCATELLO, Idaho — When Pocatello police got a tip that Jennie Linn McCormack had ended her pregnancy by taking an abortion drug obtained over the Internet, they showed up at her apartment one cold January day in 2011 and demanded an explanation.
McCormack eventually took them out to her back porch, where the remains of her fetus were on the barbecue, wrapped up in a plastic bag and a cardboard box.
“My baby is in the box,” McCormack said. Officers uncovered the frozen remains of a 5-month-old fetus and erected crime scene tape around the porch before taking her to the police station and charging her with a felony.
The civil suit that followed, scheduled to be heard by the U.S. 9th Circuit Court of Appeals on July 9, asks the courts to reject as unconstitutional the law in Idaho — a state with only two abortion clinics — that makes it illegal to obtain abortion pills from out-of-state doctors over the Internet.
The case also marks the most significant constitutional legal challenge so far to so-called “fetal pain” statutes, adopted by Idaho and at least five other states. Such laws significantly shorten the window of time in which a woman can legally abort a fetus — in the case of Idaho, to 19 weeks.
McCormack, living in a conservative, heavily Mormon region of southeast Idaho, now finds herself in the middle of an uncomfortable dilemma for both sides of the abortion debate.
Antiabortion groups have usually been uneasy about the idea of arresting women who violate abortion laws, preferring to go after the doctors they see as the guiltier parties.
Abortion-rights groups, meanwhile, want to challenge increasingly restrictive abortion laws, but for them, McCormack is far from the ideal plaintiff — she aborted a fetus at home at close to 20 weeks. And her case, if it winds its way upward, would face a U.S. Supreme Court that seems little inclined to shore up Roe vs. Wade.
The Center for Reproductive Rights, National Advocates for Pregnant Women and Legal Voice, a women’s legal advocacy group, have nonetheless filed a friend-of-the-court brief before the appeals court, arguing that the courts have traditionally seen abortion regulation in the context of protecting women, not turning them into criminals.
“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,” said Janet Chung, a Legal Voice attorney in Seattle.
In December 2010, McCormack, a 33-year-old single mother of three, found herself pregnant again. Unemployed and living off $250 a month in child support, she saw the idea of adding to her brood as unthinkable.
“I couldn’t do it. Not in the state I was in. My youngest was only 1 at the time,” she said in an interview.
She believed she was only about 14 weeks pregnant. But the sole abortion providers in Idaho are in Boise and Twin Falls, several hours away, and she didn’t have a car. A little more than 18 months earlier, she’d had an abortion that cost $450; a later-term abortion could cost more than $2,000.
That’s when her sister in Mississippi ordered abortion pills from a website, which offers a perfunctory consultation with a physician, and sent them to her, according to the police investigation. Such pills account for about 17% of all U.S. abortions, though they are generally recommended only for pregnancies of less than nine weeks.
Police say the fetus was obviously much older than 14 weeks. It had fully formed facial features, tiny fingernails, hair. McCormack told officers she was intending to go to a doctor and hand it over, but then the police showed up — apparently after getting a tip from a friend’s sister.
It was before Idaho had passed its 2011 law severely limiting abortions past 19 weeks, when disputed research suggests fetuses might begin to feel pain. But McCormack had run afoul of a 1972 law that says abortions must be performed by a doctor — and, in the case of second-trimester abortions, in a hospital. That law was interpreted by prosecutors to mean that only Idaho-licensed physicians were authorized to dispense abortion pills.
That made her guilty of a felony, reasoned the Bannock County prosecuting attorney, Mark L. Hiedeman, who filed the charges.
“It just felt like it fit the statute,” Hiedeman said. "[And] this wasn’t the first time this has happened. She’s had abortions before, and miscarriages. I mean, she was obviously getting pregnant time and time again and not protecting the unborn fetus.”
Because there was no physical evidence — no sign of drugs in the fetus, no medicine package — a judge dismissed the criminal case, but left the door open to new charges if new evidence came to light.
McCormack filed suit and persuaded U.S. District Judge B. Lynn Winmill to issue a preliminary injunction preventing the county from bringing any new charge, against her or others, until the constitutionality of the law is resolved in federal court.
McCormack’s lawyer, Richard Hearn — who happens to be a doctor — has taken the unusual step of entering the case as a plaintiff himself, a tactic he hopes will allow him to also challenge the “fetal pain” law and other statutes that might hold doctors criminally liable for prescribing abortion drugs.
“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,” Hearn said. “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.”
The state attorney general’s office earlier this year told the Legislature that the fetal pain law might not pass constitutional muster, but the state argues that it has the right to require that abortions be conducted by state-licensed physicians in safe settings.
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,” Deputy Atty. Gen. Clay R. Smith argued in a brief.
While the Idaho case may seem unusual, McCormack’s predicament is not. Across the country, 87% of counties have no abortion provider, according to the Guttmacher Institute, which studies reproductive health. In Idaho, that figure reaches 95%. The availability of the abortion pill on the Internet suggests that many women may be quietly engaging in home abortions.
“Probably that’s the case. We just don’t know about it,” Hiedeman said.
McCormack said the case had turned her into a pariah in Pocatello. She had to quit her job at a dry cleaner’s after too many clients said they didn’t want her handling their clothes.
“My neighbors gave me nasty looks when I’d go out in public. They’d get all whispery: ‘That’s her,’” she said. “My kids, they have friends that say stuff to them, and my older two, I feel that they’re a little bit ashamed. And that’s hard.”