Abortion, Politics, & the Criminal Law

In the autumn of 2010, a low-income Idaho mother named Jennie Linn McCormack learned that she was pregnant. The baby would be McCormack’s fourth; she was unemployed, attempting to raise her three older children on meager child support payments of between $200 and $250 per month, and she decided that she was unprepared to have another child. The closest abortion clinic was more than one hundred miles away, in Utah, and the cost of the procedure was several times her family’s monthly income. In desperation, McCormack turned to the Internet, where she ordered a dose of RU-486, a drug commonly used to terminate pregnancies early in the first trimester. She took the drug, but the miscarriage that followed was difficult enough to make her wonder if the pregnancy had perhaps been more advanced than she had first assumed. Unnerved, she hid the evidence and asked a close friend for advice as to how she should proceed.

That friend failed to keep McCormack’s secret; in May 2011, prosecutors charged her with violating a 1972 statute which prohibits Idaho women from procuring abortions outside clinical settings — a crime for which, had she been found guilty, McCormack could have been sentenced to up to five years in prison. The charges were dismissed without prejudice in September 2011, after which dismissal McCormack immediately sued the attorney who had attempted to prosecute her. An appeals court ruled in September 2012 that it would be legally and constitutionally anomalous to continue pursuing the case against McCormack; it has not been the practice of the Supreme Court, or of any other American court since Roe v. Wade, to allow the prosecution of individual women for the “crime” of seeking or obtaining a medical procedure whose legality in the context in which it is most often performed has been upheld by multiple courts on multiple occasions.

McCormack has also challenged the constitutionality of an Idaho law banning most abortions after twenty weeks’ gestation. This past Wednesday, the district judge to whom the appeals court remanded the case not only reaffirmed McCormack’s standing to make such a challenge (which had been in dispute) but also held the ban itself unconstitutional.

The district court’s decision was handed down on the same day on which the Arkansas legislature passed an abortion ban covering all non-therapeutic procedures performed after twelve weeks’ gestation. The most restrictive such law in the country, it is almost certainly unconstitutional, and it was originally vetoed by Arkansas governor Mike Beebe on the basis of the fact that it will be practically impossible to defend in court. No matter: the Arkansas legislature needed to make a political statement. Next to that, what are the rights of women like Jennie Linn McCormack worth?