Circuit court rules on Idaho abortion case

Circuit court rules on Idaho abortion case

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by Stephanie Zepelin

Bio | Email | Follow: @ktvbstephanie

KTVB.COM

Posted on September 14, 2012 at 12:07 PM

Updated Wednesday, Nov 6 at 4:54 PM

BOISE -- A case involving an Idaho woman could set precedent on abortion laws. The case was passed up to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit made a ruling on the case Jennie Linn McCormack versus Mark L. Hiedeman, Bannock County Prosecuting Attorney.

Jennie Linn McCormack used drugs she bought online to abort a pregnancy in 2010. She was unmarried and unemployed with three kids. Her only source of income was child support payments between $200 and $250 per month. Idaho code does not permit using drugs bought online for abortion. The Bannock County Prosecutor filed a felony criminal complaint against her, saying she broke Idaho abortion law. 

U.S. Constitution and Supreme Court expert Dr. David Adler helped us break the case down.
   
"She was the mother of three, impoverished, didn't want additional children. And for her actions she was charged with a felony by the Bannock County Prosecutor, who was seeking to enforce the Idaho statute that would impose criminal sanctions on a woman who obtains an abortion," said Adler.

The felony Bannock County Prosecutor Mark Hiedeman sought carried a punishment of 1-5 years in prison and a $5,000 fine.

The case went to the Federal District Court and Judge Lynn Winmill.

"When the Federal District Court looked at the case and decided to issue the preliminary injunction, it relied on Supreme Court precedent back to 1992 in which the court in an opinion by then Justice Sandra Day O'Connor set forth what we call the 'undue burden test.' And that means that while states do have considerable leeway to regulate the performance of abortions, the states are barred by that precedent from imposing regulations that would effectively impose an undue burden on a woman's constitutional right to obtain an abortion," explained Adler.

That essentially means that the states can regulate abortion, but not to a level which makes it extremely difficult to get an abortion, or throws substantial obstacles in the way of getting one.

"The undue burden was drawn from a number of factors including, for example, the fact that it would have required McCormack to be a policeman of her health care provider's compliance with Idaho code," explained Adler of Winmill's ruling. "So this was an undue burden because it turned the woman into an agent to police the provider's compliance with Idaho code...really an impossible task."

The case could have set national precedent:

"This would have been the first time that a criminal sanction would have been imposed upon a woman seeking an abortion. And as the Ninth Circuit Court opinion pointed out there is no Supreme Court precedent upholding the imposition of criminal sanctions on a woman who seeks an abortion," said Adler.

The court sided with Prosecutor Mark Hiedeman in one area. The appeals court said the Federal Court made an overly broad preliminary injunction.

"She (McCormack) brought a class action suit, and so the district judge crafted this preliminary injunction that would have barred the prosecutor from enforcing the statute against all women who might have been seeking to use medication purchased over the Internet that's prescribed by a physician that violates Idaho law," said Adler. "The Ninth Circuit said the Federal Court should have confined its preliminary injunction to the case involving the plaintiff, Ms. McCormack."

Adler said there is one unresolved piece to that case--the application of the Pain-Capable Unborn Child Protection Act (also known as the Fetal Pain law) to McCormack.

"That part of the statute which Ms. McCormack hoped to challenge proceeded with a judicial verdict," Adler said. "Her council argued in court that she might well become pregnant again, and that if indeed she became pregnant she would not want to submit herself to this (Pain-Capable Unborn Child Protection Act) statute."

The Ninth Circuit court said she did not have standing to challenge the fetal pain statute because she was not pregnant when this case went through the courts.

"So frankly that awaits another day in another court," said Adler.

Adler told KTVB the PUCPA (fetal pain law) will likely be held unconstitutional if and when it comes before a federal court.

"Its an interesting, complex case that represents a victory for a woman's right to an abortion, but the story has yet to be completed," said Adler.

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