News Abortion

McCormack “Not The Next Roe” Anti-Choicers Say

Robin Marty

The response to a Newsweek profile on Jennie McCormack by anti-choicers has been a bit of a head-scratcher.

This week, Newsweek revealed a riveting profile of Jennie McCormack, the Idaho woman charged with “self-abortion” who is now challenging the state’s abortion laws.  Newsweek called her “the next Roe,” but anti-choice activists aren’t a big fan of that designation.

But when it comes to the reasons she isn’t “the next Roe,” according to them, one really stands out.

The strong implication is that the state is, if not eager to retry McCormick under the 1972 law, at least keeping its powder dry. In fact, the law has rarely been used and McCormack’s case may be the only instance. In any event pro-lifers never ask that women be prosecuted, seeing them as the second victim. [emphasis mine]

They never ask that women be prosecuted?  Who called the police on McCormack?  Why did McCormack’s lawyer have to ask for an injunction to ensure that prosecuters not file charges a second time?  And why is Bei Bei Shuai still in jail? 

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Is this how you treat “the second victim?”

After her picture appeared in the paper, McCormack got a part-time job at a dry cleaner, using another name, but people figured out who she was and stopped letting her bag up their clothes, so she quit. On a recent trip to a local state office to apply for aid, she was ignored for hours. “They made it clear what was happening,” she says. “For a while I just sat there, sort of amazed that they were just letting me sit there.” Eventually, she picked up her son and went home.

Despite their claims to the contrary, many in the “pro-life” movement are just as happy to judge punish a woman who aborts as they are a doctor.

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.

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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.

Commentary Politics

Punish Women for Abortion? Spare the Outrage: That IS the ‘Mainstream’ Anti-Choice Position

Jodi Jacobson

No matter how much the anti-choice movement dissembles, there is only one reality: The laws and policies pushed by the movement and the politicians it supports punish women both explicitly and implicitly.

In 2014, Jennifer Whalen, a nursing home aide, was sentenced to between 12 and 18 months in jail. Her crime? Trying to obtain medication abortion pills for her teenage daughter, who was facing an unwanted pregnancy. Whalen, who was charged with “performing an illegal abortion,” bought the pills online because the nearest clinic from her home was 75 miles away, and because Pennsylvania has a 24-hour mandated waiting period requiring patients to make two visits to a clinic to obtain an abortion. Without health insurance, and facing loss of income from time off, the costs—of two round-trips to the clinic, a possible overnight stay in Harrisburg, and the procedure itself—became insurmountable. Out of desperation, Whalen turned to the Internet.

Whalen was arrested for a simple reason: Her daughter was pregnant and did not want to be.

Earlier this week, GOP presidential candidate Donald Trump asserted that women who have abortions should face “some form of punishment.” He since “walked it back,” political parlance for being too honest or saying the wrong thing at the wrong time. In response to his initial statement, however, the GOP and leaders of anti-choice groups collectively fell all over themselves criticizing Trump for what they declared to be a position outside the “mainstream” of their movement. Their outcry was political theater at its most insidious: Anti-choice leaders know that their real intentions—to ban abortion and punish women who have them—is a deeply unpopular opinion. So they feign concern for women by talking about “safety,” and “caring,” and “life.” No matter how much they dissemble, however, there is only one reality: The laws and policies pushed by the anti-choice movement and the politicians it supports already punish women both explicitly and implicitly, including by sending them to prison.

The anti-choice movement seeks to punish women through a web of entrapment that, spun just a little bit at a time, harms women in ways that are less noticeable to the rest of us because they don’t make headlines until women start ending up in jail.

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First, anti-choice legislators pass laws to mandate medically unnecessary waiting periods, driving up the costs of abortion care and insulting the intelligence of women who don’t need to be told to wait to figure out how to deal with their own realities. Then, they pass laws to require clinics to mimic ambulatory surgical centers, though abortion is among the safest procedures a person can obtain and there is no reason not to do them in a clinic. This forces many clinics to close because providers can’t recoup the costs of medically unnecessary building renovations, and in turn it leaves women in large swaths of a state without access to care. Then, having cut off many avenues to legal safe abortion care, lawmakers pass laws to make medication abortion inaccessible, again on medically unnecessary grounds. They also pass laws mandating that only doctors can perform abortions, even though nurses and nurse practitioners are perfectly capable of being trained to perform early abortions safely and effectively, as well as to administer medication abortion. Finally, they pass laws making self-induced abortion a crime. Put these together and the anti-choice movement has made a safe, legal abortion virtually impossible to obtain. So when, in desperation, women go to any length to end an unintended pregnancy, legislators punish them further by making them criminals and putting them into jail.

It should not be surprising then that in many states, including Georgia, Louisiana, Mississippi, Texas, and Utah, where a raft of laws similar to those mentioned above have been passed, women are taking matters into their own hands and paying the price of anti-choice laws. For example, a recent study estimated that in Texas, where abortion access has been severely limited as a result of the omnibus legislation known as HB 2, between 100,000 and 240,000 women have attempted to self-induce. Many of these women, already vulnerable because they are poor or undocumented or are made subject to racial profiling, are policed every day at medical centers and at border crossings where they go to seek medication to terminate a pregnancy. Medication that, by the way, taken correctly is completely safe and could be used for self-induction were it legal.

Women who attempt to self-induce abortion are now routinely charged with crimes. In Georgia, Kenlissia Jones was arrested in 2015 for allegedly using misoprostol to self-induce her abortion. Jones was originally facing two charges: “malice murder” and “possession of a dangerous drug” (i.e. the misoprostol). The murder charge against Jones was dropped, but she still faces punishment for the drug charge. That same year in Arkansas a nurse, Karen Collins, was arrested and faced the charge of “performing an unlicensed abortion” (a class D felony in her state) for allegedly providing a drug to a woman that would allow her to terminate her pregnancy. And in Tennessee, Anna Yocca was charged with attempted murder for a failed self-induced abortion attempt with a coat hanger. Prosecutors later dropped the attempted murder charge but said they would still pursue criminal charges against Yocca, likely for aggravated assault.

These cases are the product of anti-choice laws promoted relentlessly by Americans United for Life, the Susan B. Anthony List, the National Right to Life Committee, the Family Research Council, and others. The fact that the use of these laws to harass, frighten, indict, and imprison women is never protested by anti-choice groups tells you everything you need to know about the movement’s intentions. Punishment.

Moreover, those who seek to outlaw abortion are forever finding new and creative ways to punish women. Feticide laws, for example, were ostensibly created to allow for the prosecution of third-party actors who were violent toward pregnant women and, in turn, harmed a fetus. According to the National Conference of State Legislatures, 38 states now have feticide or “fetal homicide” laws on the books, and in 23 of these states, these laws can be applied at any stage of pregnancy. While these laws were not originally created with the intent of criminalizing pregnant women for actions they took during their own pregnancy, they are now widely used to do just that. “Pro-life” prosecutors are arresting and indicting women under such laws when they deem that either an action or lack of action by a pregnant woman causes harm to a fetus or leads to pregnancy loss. In fact, these are de facto fetal “personhood” laws of the kind promoted by anti-choice organizations such as Susan B. Anthony List.

There is Bei Bei Shuai, who was charged with murder and attempted feticide for attempting suicide while pregnant. Shuai sat in jail for 435 days until she was released on bail (where she remained under surveillance by an electronic ankle monitor). In August 2013, nearly two and a half years after her prosecution began, she accepted a plea deal to the misdemeanor charge of “criminal recklessness.”

There is Purvi Patel, who was charged with neglect of a dependent and feticide after having a pregnancy loss that the state deemed was a self-induced abortion. She is currently serving a 41-year sentence while her case is on appeal. In three states—Wisconsin, Minnesota, and South Dakota—laws on the books allow for the involuntary civil commitment of pregnant women for “not following doctors’ orders.” Recent cases in which these laws were applied include those of Alicia Beltran and Tamara Loertscher in Wisconsin. As ProPublica has noted in “How States Handle Drug Use During Pregnancy,” hundreds and potentially thousands of women in three states—Alabama, South Carolina, and Tennessee—have faced criminal prosecution under “chemical endangerment laws” that allow for the criminal prosecution of drug use during pregnancy. The anti-choice movement has pushed for and supported these laws.

This is not punishment?

And then consider AJ, a woman on whose case we reported earlier this week. AJ’s teenage daughter became pregnant. Her teacher somehow insinuated herself into the daughter’s decision-making process. Unbenownst to her mother, the teacher called another person, a stranger to this teen, who took her to a so-called crisis pregnancy center, at which the young woman was pressured under threat of “hell and damnation” to sign a document stating she did not want an abortion. These anti-choicers sent the document, containing a raft of personal information including address and social security number, to clinics and police stations in the surrounding area. When AJ’s daughter later decided, after confiding in her mother, that she did in fact want to terminate the pregnancy, they went to a clinic in Memphis, Tennessee. There, AJ found herself threatened with arrest for feticide for “coercing” her daughter to have an abortion. While there was no substance to this charge, the whole episode frightened a teen and her mom and further delayed her abortion. There are several layers of “punishment” here, including frightening a young woman with lies, tricking her into signing a bogus legal document, seeking to get her to delay the abortion until it was too late, and then threatening to arrest her mother.

There are innumerable other ways in which the anti-choice movement is actively punishing women, by, for example, supporting monitoring and harassment of women outside clinics and hospitals, making immigrant women fear arrest, and denying women access to abortion for severe fetal and developmental anomalies while slashing state funding of support for children who are severely disabled.

I could go on. The fact that these laws and policies are passed and employed throughout the country, that they  infantalize, criminalize, and otherwise treat women as children without agency is part of an overall agenda aimed at punishing women and is becoming deeply entrenched in the U.S. legal system as a direct result of the advocacy of anti-choice groups.

The anti-choice movement is built on lies. And those lies continue to be perpetuated both by its leaders, and by a media unable, unwilling, or too self-absorbed and preoccuppied with access to politicians to actually understand and report on what is happening throughout the country.