Was Idaho Searching For a Test Case to Prosecute Pregnant Women?

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Was Idaho Searching For a Test Case to Prosecute Pregnant Women?

Robin Marty

A federal court decides there is no precedent for charging a woman with a criminal abortion.  At least, not yet.

When Pocatello, Idaho mother Jennie Linn McCormack was charged with “unlawful abortion,” the prosecutor admitted two things–that there had likely been other women quietly procuring their own abortions, regardless of the state law that made it illegal for an abortion to be performed by anyone other than a doctor, and that he was aghast at the idea that McCormack, an unmarried mother of three, was irresponsibly and repeatedly getting pregnant and not “protecting the fetus.”

As a whole, the McCormack case has been a difficult one for pro-choice advocates to rally around. A late abortion, a fetus wrapped and discovered on a porch, all of the details create a profile of a woman for whom it may be difficult to garner a great deal of sympathy.

But that may have been exactly why this case began in the first place. McCormack is by no means the only woman within the last two years to be arrested for the crime of potential “self-abortion.” Police tried to charge New Yorker Yaribely Almonte with self-abortion after her 24-week old fetus was found in a dumpster, claiming she took a tea to induce her own miscarriage. The charges were dropped although, like in McCormack’s case it was left open to allow a chance to prosecute if more evidence was found to support the charge.

Women have rarely been charged with self-abortion in the past, and when it does occur, the charges are often dismissed. Yet in 2011 two very prominent, public cases occurred. With a refusal to completely close cases off, it seems as if prosecutors may in fact be testing the waters to see if people really believe that “there are two victims in an abortion–the mother and the child,” as so-called pro-life advocates claim, or if people are open to the idea of criminalizing the woman as an accessory if abortion does become illegal.

Roe has collapsed and Texas is in chaos.

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In other words, an attempt to see whether the courts–and the public–are ready yet to consider jailing those who obtain abortions, and not just the doctors who perform them, has failed.

For now.

“This is an important decision that explicitly rejects Idaho’s claim that the state may use its criminal abortion laws to punish pregnant women who end their pregnancies,” said Lynn Paltrow, Executive Director of National Advocates for Pregnant Women, via statement.  “Leading ‘pro-life’ organizations have repeated claimed that their efforts will not result in women going to jail, yet none opposed the arrest of Ms. McCormack.”

The federal court’s ruling states that women are exempt from being charged under “physician only” criminal statues when it comes to abortion, regardless of whether the law says so explicitly.

“[T]here is no Supreme Court precedent that recognizes or suggests that third party criminal liability may extend to pregnant women who obtain an abortion in a manner inconsistent with state abortion statutes,” according to the panel.

The question that remains is are anti-choice lawmakers and law enforcement looking for a way to set that precedent? If the surge in charging women for self-abortion continues, we will likely have our answer.