A Quiet Victory

A federal court strikes down Idaho’s abortion laws. Anti-abortion activists don’t want to talk about it. 

Jennie Idaho.
The Idaho capitol in Boise. Idaho’s most draconian abortion laws, including a 20-week ban, were recently struck down by a federal court.

Photo by Kevin Rank/Flikr

Jennie Linn McCormack had just finished doing laundry and putting her 2-year-old son to bed when she heard a knock one evening in May 2011. McCormack, a single mother of three living off child support checks, opened the door to find a police officer. He was there to arrest her. The officer explained that McCormack had committed a serious felony under Idaho law—by giving herself an abortion. He proceeded to barrage her with invasive questions about her body and her ex-boyfriend.

“How can you question me about my personal stuff?” McCormack demanded, according to an NPR report.

“Well,” the officer apparently responded, “there’s legal and there’s personal.” The state charged McCormack with intentionally self-terminating her pregnancy, a crime punishable by up to five years in prison.

After several humiliating hearings, McCormack and her attorney defeated the charge. McCormack actually had given herself an abortion in late 2010, mostly out of desperation: There were no abortion clinics anywhere in southeast Idaho, and an abortion in Salt Lake City, 138 miles away, could cost $2,000. So McCormack procured abortion pills online and took five. She hadn’t realized that her fetus was between 19 and 23 weeks old—and that she was much too far along in her pregnancy to have a safe nonsurgical abortion. McCormack told her friend about the abortion. The friend told her sister—and her sister told the police, who found the fetus wrapped in bags on McCormack’s back porch.

After a judge dismissed the case against her for lack of evidence, McCormack was legally off the hook. But she was also furious: furious that Idaho had intruded so deeply into her private life, furious that its strict abortion laws had driven her to such desperate extremes, furious that other women in her situation might be forced to undergo unsafe abortions at their own hands. So McCormack and her lawyer—who happened to also be a doctor—brought a class action in federal court, seeking to have a slew of Idaho’s draconian anti-abortion laws struck down as unconstitutional.

On May 29, the 9th U.S. Circuit Court of Appeals granted McCormack’s wish. It affirmed a lower court’s invalidation of the self-induced abortion statute, as well as three other laws: one that barred abortions of fetuses at 20 weeks postfertilization, one that required all second-trimester abortions to occur in hospitals, and one that placed onerous burdens on clinics in the form of safety regulations. The litigation may not be over: Idaho can ask a bigger panel of 9th Circuit judges to rehear the case or appeal the ruling to the Supreme Court. Still, as states like Wisconsin move closer to enacting shockingly stringent abortion laws, the decision is a powerful affirmation of constitutional autonomy in an age when that value is in short supply.

You might not guess it from the recent rash of insane restrictions, but abortion is still constitutionally protected throughout the United States. In 1992’s Planned Parenthood v. Casey, the Supreme Court held that a state cannot impose an “undue burden” on a woman seeking to obtain an abortion before fetal viability. Under Casey, a state can attempt to persuade a women to keep her fetus but cannot flatly bar her from aborting it. The ability to retain ultimate control over one’s reproductive capacities, the court held, involves “choices central to personal dignity and autonomy” that “are central to the liberty protected by the Fourteenth Amendment.”

The 9th Circuit found Idaho’s abortion laws to be unconstitutional by doing what other federal courts have refused to do: taking Casey seriously. A categorical 20-week abortion ban, the court explained, would necessarily bar some previability abortions, since fetuses gestate at different rates. Prohibiting a woman at 20 weeks postfertilization from obtaining an abortion—even if her fetus is not yet viable—is a quintessential “undue burden” prohibited by the Supreme Court. Similarly, a related law that requires all second-trimester abortions to occur in hospitals simply has no basis in medical necessity.

Finally, the law burdening abortion clinics with intricate regulations, the court explained, was unconstitutionally vague: It required clinics to meet certain criteria (like being “properly staffed”) without explaining what those criteria actually meant. The law seemed designed to frustrate and terrify clinics, not keep them safe.

Part of what’s so impressive about the 9th Circuit’s ruling is the way it ingeniously wriggles around one troubling precedent, Gonzales v. Carhart. In Carhart, Justice Anthony Kennedy gave anti-abortion activists what my colleague Dahlia Lithwick calls the “gift that keeps on giving.” Kennedy upheld Congress’ ban on a certain type of late-term abortion, claiming the government has an interest in preventing abortions because women who abort may suffer “severe depression,” “loss of esteem,” and “regret.” (“[W]e find no reliable data to measure the phenomenon,” he added.)

But the decision in Gonzales v. Carhart did not overrule an earlier case, Stenberg v. Carhart, which had invalidated a late-term abortion ban. Kennedy got around this precedent by noting the Stenberg statute was ruled unconstitutional because it used vague terms that might ban all late-term abortions, while the federal law at issue in Gonzales v. Carhart explicitly banned one specific procedure. (This banned procedure, it so happens, is safer for women than the procedure Congress left legal.) A doctor could not really know, the court held, whether the abortion she performed was legal or illegal under the law. That made the statute unconstitutional.

The 9th Circuit took Stenberg v. Carhart’s reasoning to its logical conclusion, holding that states must be clear about precisely what conduct they are outlawing in the abortion context. By requiring that abortion clinics be “properly staffed” and make “satisfactory arrangements” with hospitals, the Idaho law essentially set a trap. Any zealous prosecutor could use these broad, undefined terms to prosecute a clinic, concocting a claim that the clinic had too few nurses or doctors. Then, if he found a willing judge, he could send the clinic’s operators to jail. This looming threat of prosecution puts an unconstitutional burden on both clinics and the women who use them.

Although the 9th Circuit’s ruling is a slam-dunk for abortion rights, few anti-abortion activists are openly condemning it. (The Susan B. Anthony List President Marjorie Dannenfelser called McCormack’s prosecution “not acceptable.”) That’s because the case’s genesis puts them in a real bind. For decades, the anti-abortion movement has targeted abortion providers directly and insisted that it seeks to protect women, not prosecute them. In Dannenfelser’s words, “We do not think women should be criminalized. Criminal sanctions or any kind of sanctions are appropriate for abortionists, and not for women.”

Yet this case arose because a woman gave herself an abortion—and was arrested because of it. She herself was the “abortionist.” Since she aborted her own fetus, why shouldn’t she be prosecuted? And if she truly killed a baby, as anti-abortion groups believe, shouldn’t she be charged with first-degree murder? The McCormack case presents thorny questions that anti-abortion activists would rather not answer. Better to scapegoat the abortion providers—and pretend that a woman is not the one who makes the ultimate decision to end a pregnancy.