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Ninth Circuit: McCormack Likely to Win Unlawful Abortion Challenge

By Robyn Hagan Cain on September 11, 2012 | Last updated on March 21, 2019

The Ninth Circuit Court of Appeals ruled on Tuesday that a woman who induced her own abortion with Internet-prescribed medications is likely to succeed on her claim challenging the Idaho’s Unlawful Abortion law, but found that a lower-court overstepped its authority by barring a Bannock County prosecutor from enforcing the law against other women, The Wall Street Journal reports.

According to the Ninth Circuit opinion, Jennie McCormack learned that she was pregnant in the fall of 2010, and sought an abortion. Abortions were not available where she lives, (in southeast Idaho), but McCormack found out that abortions could be performed in Idaho using medications. Abortions by medication were also significantly cheaper than surgical abortions.

McCormack, who was living off of child support checks at the time, could not afford the surgical procedure or multiple trips to a clinic hours away, so she terminated her pregnancy with medication obtained online. She later confided to a friend that she was "horrified" when she discovered that the pregnancy was likely much further along than the first nine-week period during which the medication was medically recommended, NPR reports. Her friend's sister reported McCormack to the authorities.

Last year, Mark Hiedeman, the Bannock County, Idaho prosecuting attorney, filed a felony criminal complaint against McCormack, charging her with Unlawful Abortion. Under Idaho law, it is a felony for any woman to undergo an abortion in a manner not authorized by statute. As a result, McCormack faced up to five years in prison.

The Idaho state district court dismissed the criminal complaint without prejudice. Hiedeman has not determined whether he will re-file the criminal complaint.

McCormack, however, attempted to head off future prosecution by filing a federal class action lawsuit against Hiedeman, claiming that the Unlawful Abortion law violates various provisions of the Constitution.

The district court issued a preliminary injunction, restraining Hiedeman from enforcing the statute. Hiedeman appealed, and won a partial victory in the Ninth Circuit Court of Appeals.

In a 37-page opinion, Ninth Circuit Judge Harry Pregerson wrote that McCormack was likely to win her case because the Unlawful Abortion law imposed an "undue burden" on a woman seeking an abortion of a nonviable fetus.

The appellate court, however, reversed the scope of the injunction to the extent that it granted relief beyond McCormack.

Since we're talking about the Ninth Circuit, it's pretty much a guarantee that McCormack will either win in the district court, or on appeal. Do you think this case will go all the way to the Supreme Court?

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