Idaho Trial Over “Unlawful Abortion” Could Have National Repercussions

Will the McCormack/Hearn lawsuit open up access to abortion for everyone?

Jennie Linn McCormack. Robyn Twomey/Newsweek

For anti-choice activists, Idaho’s Jennie Linn McCormack is the poster child for their “abortion as birth control” talking point. A single mother of three living on child support, McCormack accidentally got pregnant while her youngest was still a toddler. It wasn’t her first unintentional pregnancy, either. She had already had an abortion, and the man who impregnated her was currently in jail.

But for all of those reasons, McCormack is maybe the best example of why abortion should remain legal and even more accessible, and a civil suit scheduled to be heard in the 9th Circuit this week could turn that into a reality.

McCormack was charged with illegal abortion in 2011 after receiving pills to end her pregnancy from her sister, who procured them over the internet. It’s unclear if the medication actually caused the ending of the pregnancy — McCormack, who thought she was about 14 weeks pregnant was actually closer to 20 or more based on examination of the fetus — or if she would have miscarried regardless, since the medication isn’t recommended for termination after nine weeks gestation.

It was this uncertainty, a lack of medication found in the fetus, or any packaging materials, that resulted in a dismissal. However, the case was left open so charges could be reintroduced if any new evidence was discovered.

McCormack’s lawyer, Richard Hearn, has said it is that factor that has caused McCormack to sue to overturn the “unlawful abortion” statute, as well as the state’s so-called “fetal pain” law which makes it illegal to terminate a pregnancy past 20 weeks, to ensure she cannot be charged again. Her case against the 20-week abortion ban was dismissed for lack of standing because it was not in effect yet when she was arrested. But Hearn, who was also a licensed physician, then filed to intervene and be a second plaintiff, as well as turn the suit into a class action.

McCormack’s case may be filled with the type of gruesome details that make those who oppose abortion salivate. “Idaho woman placed aborted fetus on barbecue,” one headline screams, while the woman who tipped off the police about the alleged crime worried that “the baby had no voice.” Some claim that the case is too ugly, that McCormack is too unsympathetic for those who support a woman’s right to control her reproductive health to support.

The reality is that McCormack is the reason why Roe exists, and why the whittling away of abortion rights is so critical at this point. Regardless of how late it occurred, McCormack’s attempt to terminate was a combination of financial struggles, an inability to access an affordable procedure, and a lack of providers who could provide a termination. Restrictions since 1992’s Planned Parenthood vs. Casey decision, such as waiting periods, which drive up expenses and the time needed to get an early abortion; TRAP laws; and attacks on providers, have created roadblocks to early safe abortion care. As a result, early, safe abortion care has become increasingly unattainable for women at the economic margins, leading them to take matters into their own hands to terminate an untenable pregnancy in any way possible. 

As has been predicted, access to safe abortion care is increasingly dependent on a woman’s economic means. And now, those women who can’t afford safe abortion care and take matters into their own hand are increasingly being prosecuted for their actions by the same people who have cut off access to legal procedures in the first place.

McCormack wasn’t charged for ending the pregnancy illegally, but for getting pregnant in the first place. The prosecutor admitted as much when he searched for charges to bring up against her, deciding that he could make what she did fit the standards of the “unlawful abortion” law, which had been in existence since 1972 but never used on a woman in the state before. 

“It just felt like it fit the statute,” Bannock County prosecuting attorney, Mark L. Hiedeman told the L.A. Times. “[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.”

When asked if he thought that other women in the state might also be using pills from the internet to end their pregnancies, Heideman said, “Probably that’s the case. We just don’t know about it.”

Just as being able to obtain an abortion shouldn’t be dependent on a woman’s economic status, being prosecuted for obtaining an “illegal” one shouldn’t be dependent on a woman’s personal history. If a woman cannot obtain an abortion legally, and has to fear ending up in jail simply because a prosecutor doesn’t agree with her decisions in life, there’s little choice but to sue to bring the entire law down.

That is Hearn’s position when it comes to challenging Idaho’s “unlawful abortion” statute. The intervenor complaint argues:

Idaho Code § 18-605(2) entitled “Unlawful abortions – Accomplice or accessory – Submitting to – Penalty” reads as follows: “Except as permitted by this Act . . . (2) Every woman who knowingly submits to an abortion or solicits of another, for herself, the production of an abortion, or who purposefully terminated her own pregnancy otherwise than by live birth, shall be deemed guilty of a felony and shall be fined not to exceed five thousand dollars ($5,000) and/or imprisoned in the state prison for not less than one (1) and not more than five (5) years; . . . “31. In criminalizing the conduct of women in Idaho for submitting to abortions provided by licensed health care providers practicing both in and outside of the State of Idaho, Idaho Code § 18-605(2) imposes an undue burden on those women’s right to obtain an abortion as guaranteed by the Fourteenth Amendment of the U.S. Constitution.

Should Hearn and McCormack be able to overturn the “unlawful abortion” law in the state, obtaining medication off the internet in order to terminate a pregnancy would be a viable option. Despite the fact that there are only two clinics in the state that provide abortions, women would no longer face large economic burdens in order to end unwanted pregnancies, nor worry that they could face jail time simply by enacting their constitutional right to choose.

Hearn has said he is willing to see the case all the way to the Supreme Court. What begins in the 9th Circuit this week could end all the way in D.C., and has the potential to expand abortion access for everyone along the way.