News Abortion

“Fetal Pain” Ban Challenged In Idaho

Robin Marty

A woman accused of unlawful abortion is now challenging two of the state's abortion laws.

Jennie McCormack, an Idaho mother of three who recently had charges of “unlawful abortion” dismissed against her, is now suing the state in an attempt to have a ban on “ending your own pregnancy” and the newly passed 20 week “fetal pain” ban overturned.

A hearing will be held on September 8th to for the courts to consider an injunction on both laws, which McCormack’s lawyer is arguing are unconstitutional.

Via Reuters:

The 1972 Idaho law discriminates against McCormack and other women of limited means in southeastern Idaho, which lacks any abortion providers, by forcing them to seek more costly surgical abortions far from home, the lawsuit says.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

McCormack was turned in for “unlawful abortion” after an anti-choice sibling of one of her friends contacted the police to tell them of her actions.

Analysis Law and Policy

Patel Oral Arguments Suggest a Dangerous Precedent for Prosecuting Pregnant People

Jessica Mason Pieklo

Attorneys for the State of Indiana argued it is entirely reasonable for the state to bring felony charges against women who try and terminate their own pregnancies.

Read our other articles on the Purvi Patel case here.

Almost three years ago, the State of Indiana first charged Purvi Patel with both feticide and neglect of a dependent following Patel’s home delivery of what state doctors testified was a 25-week-old fetus. Today, there is still no clear picture of the events leading up to those charges. Based on the conflicting evidence presented at Patel’s seven-day trial, it’s not clear what Patel knew about her pregnancy, including how far along she was. It’s not clear what exactly happened that day in Patel’s bathroom. And, most importantly, there is no clear picture of whether the delivery resulted in a live birth.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

But on Monday, lawyers from the state Attorney General’s Office argued to the Indiana Court of Appeals that none of those unknowns matter. Patel’s charges of feticide for unlawfully terminating her pregnancy and neglecting a live dependent were not contradictory. Quite simply, argued Indiana Deputy Attorney General Ellen Meilaender, if there’s evidence that a person’s conduct contributed to the death of a fetus or a severely prematurely infant born alive that then dies, that person faces possible felony prosecution both for feticide and criminal neglect of a dependent—setting a disturbing potential precedent for pregnant people throughout the state.

The Indiana feticide statute makes it a felony for a person to “knowingly or intentionally terminate a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus.” The statute is silent on whether a self-induced abortion falls under this category. Indiana prosecutors argue that it does and told the appeals court Monday that the jury verdict against Patel proved them right.

The state made a similar argument with Patel’s conviction for felony neglect of a dependent. According to the state, by taking abortion-inducing drugs, Patel created a situation that put her “dependent”—in other words, her fetus—in harm’s way. Once delivered alive, the state argued, Patel had a legal duty to immediately seek medical attention on its behalf, including clamping her umbilical cord immediately after delivery to prevent neonatal blood loss and calling 9-1-1 for emergency care. It made no difference, prosecutors said, that the medical evidence was contradictory as to whether there was a live birth at all, or what, if anything, Patel understood was happening at the time of the delivery.

Patel’s attorneys may disagree with the inferences made by the jury, state attorneys argued, but that doesn’t mean the law grants the court grounds to overturn the jury verdict.

It wasn’t clear to me at the end of oral arguments that the three-judge panel was buying the State’s argument. The judges pushed Meilaender hard on where the law should draw the line between taking nonprescribed abortion medications that produce a live birth where the baby then dies—as the state argued happened here—to drinking whiskey, smoking cigarettes, or taking any other host of actions that may help contribute to a miscarriage. The judges seemed to agree that it would be excessive to prosecute pregnant people for smoking, for example. The judges also appeared skeptical about the argument that the feticide statute doesn’t require the fetus to die in utero, and that even a live birth can and should be prosecuted under this statute if the accused person’s original intent was to terminate a pregnancy outside Indiana’s stringent legal abortion requirements.

But it also wasn’t clear they bought the argument of Patel’s attorney, Lawrence Marshall, that the state hadn’t met its burden of proof when it convicted her. Marshall stammered to keep the judges on point, refusing to answer whether federal constitutional precedent, from Roe v. Wade to Planned Parenthood v. Casey, would protect many other people from unchecked pregnancy policing under feticide laws. (Spoiler: The simple answer is no—as Tennessee, Mississippi, Alabama, and Arkansas, to name a few, show).

The heart of the state’s negligence case against Patel rests on her alleged failure to seek care for a live birth. Yet Marshall could not specifically and directly answer the judges’ concerns that Patel, after allegedly cutting the umbilical cord during delivery, should have also immediately clamped or kinked it to prevent any blood loss to the fetus she just delivered. He did not note that it is unreasonable to expect any woman immediately following an extremely premature delivery to have the presence of mind to do such things, lest she face felony prosecution. He tried to point out that there was medical testimony at trial that at 25 weeks, severely prematurely born infants have only modest survival rates even when born at hospitals and immediately transferred to neonatal intensive care units, and tried to argue the state couldn’t prove that Patel had any idea a live birth had even happened. But all those counters appeared to fall flat on a panel of judges clearly willing to consider, and perhaps even accept, that Patel’s failure to kink her umbilical cord and call 9-1-1 immediately post-delivery was sufficient to convict her for felony neglect of a dependent.

Throughout the trial and the appeal, the state compensated for its lack of direct evidence about the situation by trying to redirect the jury’s focus to Patel’s “character,” which, prosecutors argued, helped inform the decision to convict her. Patel was in a relationship with a married man. Evidence at trial showed she had been texting back and forth with a friend concerning the pregnancy and her desire to terminate it, in part because of fears her conservative Hindu family would not support her. That’s both sexually provocative and naive, argued the state in its appellate brief—provocative because she was acting outside religious and social norms, and naive because “family would have loved her regardless and would have welcomed the baby, as it is their religious belief to love a child even if born out of wedlock and their religion is opposed to killing anyone or anything.”

Meanwhile, the state argued, the evidence that should be weighed in Patel’s favor did not matter. That included evidence at trial that showed Patel believed she was only about 12 weeks pregnant—not about 25 weeks—when she took the unprescribed abortifacient. Not important, argued the state. All that matters is her fetus was old enough to fall outside Indiana’s limit on 20-week abortions. Evidence at trial showed that Patel tried, ultimately unsuccessfully, to navigate Indiana’s web of anti-choice restrictions before ordering abortion-inducing medications online; but that just demonstrates Patel had the right criminal intent to support the jury’s conviction, said Meilaender, not that those regulations are difficult for non-lawyers to navigate on their own.

In other words, argued Meilaender, the details that should normally be necessary to support a criminal conviction—details such as what Patel knew, and when—just don’t matter in this case.

Those details do matter. That’s why the U.S. Court of Appeals for the Ninth Circuit rejected nearly identical arguments in the prosecution of Jenni Linn McCormack, an Idaho woman who also terminated a pregnancy and was criminally prosecuted for it. Expecting patients to understand the intricacies of abortion restrictions or face criminal prosecution at its very core unduly burdens abortion rights, that court ruled.

It will likely be months before the Indiana Court of Appeals issues its opinion. And I’m not going to make any guesses about how this case turns out. But I will say that, despite all the unknowns in the Patel case, there are plenty of knowns that ultimately affect Patel and pregnant people in Indiana as a whole.

We know that Indiana law does not mandate sex education be taught in its schools. The Indiana Department of Education recommends its inclusion as part of a school’s comprehensive health education program. But that’s it. And for those schools that decide to offer some form of sex ed, there’s no requirement that the information provided be unbiased and medically accurate, let alone do anything other than stress abstinence-only sex ed. And of course, parents in Indiana have the option of opting out of sex ed entirely for their children should they so choose.

We also know that legal abortion in Indiana is extensively and severely restricted. First, any person seeking an abortion must receive state-mandated counseling that includes information designed to discourage the patient from having an abortion. That counseling must be done in person. Indiana law then requires a patient to wait an additional 18 hours after that counseling session before an abortion can be performed. That means, effectively, patients must make two separate trips to an abortion clinic to have the procedure. A patient must also undergo an ultrasound before obtaining an abortion and during that ultrasound the provider must offer her the option to view the ultrasound image.

Indiana law also prohibits the use of telemedicine for medication abortion. Also, Indiana bans abortions after 20 weeks, with only a very narrow exception of when the patient’s life or physical health is at risk.

And if that patient can navigate the consent and waiting period requirements, how will they pay for the procedure? In Indiana, abortion is covered in private insurance policies only in cases of life endangerment, rape, incest, or the severely compromised health of the pregnant person. Individuals have the option of buying a separate abortion policy, but that, of course, is at additional cost.

What do Indiana’s sex ed requirements and abortion restrictions have to do with Patel’s conviction and appeal? Everything. Just like the fact that Patel, like Bei Bei Shuai before her, is not white and is not wealthy. A lack of comprehensive sex education means it’s increasingly likely other patients will, like Patel, have very little apparent understanding of the pregnancy process, particularly early on in pregnancy when indicators such as a missed period can be mixed. An increasingly draconian set of abortion restrictions means more and more patients like Patel will find themselves unable to access a legal provider or afford an abortion at all, which means that more and more patients like Patel will be forced into either attempting to self-terminate an unwanted pregnancy or carrying it to term.

Attorneys for the State of Indiana tried to tone down the “canary in a coal mine” aspect to Patel’s conviction. But there really is no denying it. During Monday’s arguments, they were pressing for the right to bring felony charges against women who terminate their own pregnancies. They insisted those prosecutions are exactly what the Indiana legislature intended when passing its feticide statute and further, such prosecutions advanced the state’s “significant” interest in protecting “unborn human life.”

Combine those arguments with the unavailability of comprehensive sex ed and the anti-choice restrictions in Indiana, and it’s clear that Patel’s case is absolutely a test case in the limits, if any, of state power to regulate pregnancies and their outcomes. Should Patel’s conviction be upheld, then the courts will have sent a very strong message to the the people of Indiana: The state expects and demands a healthy, live birth with each pregnancy, and failure to produce one could result in felony charges.

News Science

‘Fraudulent’ Bill Criminalizing Fetal Tissue Donations Heads to Idaho Governor

Nicole Knight Shine

Democratic legislators staged a boycott of the legislation, refusing to attend a committee meeting where the anti-choice bill was set to be heard.

A Republican-backed bill to criminalize the “sale, transfer, distribution or other unlawful disposition” of fetal tissue derived from abortion care is headed to the desk of Idaho Gov. C.L. “Butch” Otter (R).

The GOP measure is based on a series of widely discredited videos published by an anti-choice front group known as the Center for Medical Progress (CMP), the leaders of which have been indicted on felony and misdemeanor charges related to the group’s smear campaign against Planned Parenthood.

The “Unborn Infants Dignity Act,” SB 1404, outlaws research performed on “bodily remains or embryonic stem cells” derived from abortion care, including scientific work conducted by Idaho colleges and universities that receive public money.

Violators could face criminal penalties as high as five years in prison, a fine up to $10,000, or both.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

SB 1404 passed in the state senate last week in a party-line vote, and cleared the house in a 54-14 vote, with Rep. Fred Wood (R-Burley), a doctor, joining Democratic lawmakers in opposition.

Democratic members of the House State Affairs Committee on Thursday staged a boycott of the legislation, refusing to attend a committee meeting where the anti-choice bill was set to be heard, as the Spokesman-Review reported.

Four Democrats said in a statement provided to Rewire:

As the Democratic members of the House State Affairs Committee, we collectively chose to abstain from participating in today’s hearing of a bill because it is beneath our dignity, it is beneath the dignity of our constituents, and it is not worthy of our time or attention.

The bill before the committee today is a “fraud.” It is fraudulent to use our time here to run special interest bills that are bad public policy. This bill, like many others introduced this session, is designed to inflame a small constituency that these politicians count on to vote for them. That’s campaigning on the public dime.

The anti-choice group Idaho Chooses Life supports the law, which is copycat legislation that the national anti-choice group Americans United for Life is advancing at the state level in GOP strongholds.

Introducing the legislation last week in the house, Rep. Brent Crane (R-Nampa) referenced the surreptitiously recorded videos from CMP that purported to show Planned Parenthood officials participating in the illegal sale of fetal tissue.

Twenty states have cleared Planned Parenthood of wrongdoing or declined to investigate, as has Idaho’s governor, who rejected a request by nearly 30 Republican lawmakers to investigate the health-care organization.

Planned Parenthood operates clinics in Boise, Meridian, and Twin Falls, but does not offer a fetal tissue donation program in the state, said Hannah Brass Greer, Idaho legislative director of Planned Parenthood Votes Northwest and Hawaii, who spoke with Rewire in a phone interview.

“It’s clear that the proponents of this bill are part of the same group of people … that have been behind the attacks nationwide against Planned Parenthood,” Brass Greer said. “Even though Planned Parenthood has done nothing wrong … they continue to move forward because no matter what, they oppose safe and legal abortion.”

As Rewire has reported, “[f]ederal law regulates the use of fetal tissue for research or transplant, and as far as federal statutes go, this one is pretty clear. It’s a crime for anyone to buy or sell fetal tissue for profit. It is not a crime to donate and transfer that tissue for research or transplant into another organism or tissue.”

“Donating any tissue or organ for research or transplant is an expensive process,” Rewire Vice President of Law and the Courts Jessica Mason Pieklo added, “which is why the [federal] law specifically states those involved may make and receive ‘reasonable payments associated with the transportation, implantation, processing, preservation, quality control, or storage of human fetal tissue.’”

Addressing the house on Thursday, Minority Leader John Rusche (D-Lewiston), who practiced pediatrics for 16 years, said he’d seen some people in his practice who chose to donate the organs of fetuses that were aborted because the fetuses would not have survived outside of the womb. He said the legislation would make this illegal, as MagicValley.com reported.

Rep. Mat Erpelding (D-Boise) grew emotional as he told lawmakers that he would have donated the organs of his stillborn fetus to save someone else.

“Running legislation on innuendo and passion is one thing,” Erpelding continued, as MagicValley.com reported. “Potentially harming the opportunity to save another child’s life because of a point that’s trying to be made is wrong.”

Otter has until April 1 to sign or veto the bill. If he fails to do either, it will automatically become law. The governor has a record of signing anti-choice restrictions.