By Chad Bray, Wall Street Journal September 11, 2012
A federal appeals court on Wednesday said that Idaho’s law allowing authorities to bring criminal charges against pregnant women who seek abortions by using medications purchased online will likely be found unconstitutional.
However, despite finding that a lawsuit challenging the statute is likely to prevail at trial, the U.S. Ninth Circuit Court of Appeals said a lower court went too far in broadly barring a local prosecutor from enforcing the law, which allows women to be charged criminally for undergoing procedures that the state deems “unlawful.”
The appeals panel on Wednesday narrowed a court-issued injunction in a civil lawsuit challenging the law, saying the prosecutor is only barred from bringing a criminal case against a low-income woman who opposed the Idaho statute, not others.
In May 2011, Mark Hiedeman, the prosecuting attorney in Bannock County, Idaho, brought criminal charges against Jennie Linn McCormack, an unmarried mother of three, after she purchased medications over the Internet in 2010 to terminate her pregnancy. There are no licensed healthcare providers who offer abortions in southeastern Idaho and Ms. McCormack, who didn’t want to have additional children, claimed the medications were prescribed by a physician outside of Bannock County.
The criminal charges were dismissed last September, but Ms. McCormack subsequently challenged Idaho’s law in a federal lawsuit, saying it was unconstitutional.
The appellate panel, in part, disagreed with the prosecuting attorney’s reading of prior U.S. Supreme Court decisions — including the landmark Roe v. Wade case — that a state may prohibit anyone other than a licensed physician from performing an abortion.
“These principles, embraced by the Supreme Court, recognize that women’s health is an important interest for the state and one that is considered in crafting abortion statutes,” Judge Harry Pregerson wrote in the 37-page opinion.
He went on,
These principles, however, in no way recognize, permit, or stand for the proposition that a state may prosecute a pregnant woman who seeks an abortion in a manner that may not be authorized by the state’s statute, including when a pregnant woman receives physician- prescribed medication to terminate her pregnancy. Hiedeman’s reading of Roe andCasey expands these Supreme Court holdings to reach an unintended result.
The circuit also found that Ms. McCormack was likely to succeed in her case, saying the Idaho law “heaps yet another substantial obstacle” on Ms. McCormack and other pregnant women in deciding whether to obtain an abortion.
“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,” Judge Pregerson said.
Mr. Hiedeman and lawyers for Ms. McCormack didn’t immediately return phone calls seeking comment Wednesday.
A spokeswoman for the Idaho attorney general’s office, which is defending the law, said the office is reviewing the decision and declined further comment.
Source: Wall Street Journal