News Abortion

Idaho Trial Over “Unlawful Abortion” Could Have National Repercussions

Robin Marty

Will the McCormack/Hearn lawsuit open up access to abortion for everyone?

For anti-choice activists, Idaho’s Jennie Linn McCormack is the poster child for their “abortion as birth control” talking point. A single mother of three living on child support, McCormack accidentally got pregnant while her youngest was still a toddler. It wasn’t her first unintentional pregnancy, either. She had already had an abortion, and the man who impregnated her was currently in jail.

But for all of those reasons, McCormack is maybe the best example of why abortion should remain legal and even more accessible, and a civil suit scheduled to be heard in the 9th Circuit this week could turn that into a reality.

McCormack was charged with illegal abortion in 2011 after receiving pills to end her pregnancy from her sister, who procured them over the internet. It’s unclear if the medication actually caused the ending of the pregnancy — McCormack, who thought she was about 14 weeks pregnant was actually closer to 20 or more based on examination of the fetus — or if she would have miscarried regardless, since the medication isn’t recommended for termination after nine weeks gestation.

It was this uncertainty, a lack of medication found in the fetus, or any packaging materials, that resulted in a dismissal. However, the case was left open so charges could be reintroduced if any new evidence was discovered.

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McCormack’s lawyer, Richard Hearn, has said it is that factor that has caused McCormack to sue to overturn the “unlawful abortion” statute, as well as the state’s so-called “fetal pain” law which makes it illegal to terminate a pregnancy past 20 weeks, to ensure she cannot be charged again. Her case against the 20-week abortion ban was dismissed for lack of standing because it was not in effect yet when she was arrested. But Hearn, who was also a licensed physician, then filed to intervene and be a second plaintiff, as well as turn the suit into a class action.

McCormack’s case may be filled with the type of gruesome details that make those who oppose abortion salivate. “Idaho woman placed aborted fetus on barbecue,” one headline screams, while the woman who tipped off the police about the alleged crime worried that “the baby had no voice.” Some claim that the case is too ugly, that McCormack is too unsympathetic for those who support a woman’s right to control her reproductive health to support.

The reality is that McCormack is the reason why Roe exists, and why the whittling away of abortion rights is so critical at this point. Regardless of how late it occurred, McCormack’s attempt to terminate was a combination of financial struggles, an inability to access an affordable procedure, and a lack of providers who could provide a termination. Restrictions since 1992’s Planned Parenthood vs. Casey decision, such as waiting periods, which drive up expenses and the time needed to get an early abortion; TRAP laws; and attacks on providers, have created roadblocks to early safe abortion care. As a result, early, safe abortion care has become increasingly unattainable for women at the economic margins, leading them to take matters into their own hands to terminate an untenable pregnancy in any way possible. 

As has been predicted, access to safe abortion care is increasingly dependent on a woman’s economic means. And now, those women who can’t afford safe abortion care and take matters into their own hand are increasingly being prosecuted for their actions by the same people who have cut off access to legal procedures in the first place.

McCormack wasn’t charged for ending the pregnancy illegally, but for getting pregnant in the first place. The prosecutor admitted as much when he searched for charges to bring up against her, deciding that he could make what she did fit the standards of the “unlawful abortion” law, which had been in existence since 1972 but never used on a woman in the state before. 

“It just felt like it fit the statute,” Bannock County prosecuting attorney, Mark L. Hiedeman told the L.A. Times. “[And] this wasn’t the first time this has happened. She’s had abortions before, and miscarriages. I mean, she was obviously getting pregnant time and time again and not protecting the unborn fetus.”

When asked if he thought that other women in the state might also be using pills from the internet to end their pregnancies, Heideman said, “Probably that’s the case. We just don’t know about it.”

Just as being able to obtain an abortion shouldn’t be dependent on a woman’s economic status, being prosecuted for obtaining an “illegal” one shouldn’t be dependent on a woman’s personal history. If a woman cannot obtain an abortion legally, and has to fear ending up in jail simply because a prosecutor doesn’t agree with her decisions in life, there’s little choice but to sue to bring the entire law down.

That is Hearn’s position when it comes to challenging Idaho’s “unlawful abortion” statute. The intervenor complaint argues:

Idaho Code § 18-605(2) entitled “Unlawful abortions – Accomplice or accessory – Submitting to – Penalty” reads as follows: “Except as permitted by this Act . . . (2) Every woman who knowingly submits to an abortion or solicits of another, for herself, the production of an abortion, or who purposefully terminated her own pregnancy otherwise than by live birth, shall be deemed guilty of a felony and shall be fined not to exceed five thousand dollars ($5,000) and/or imprisoned in the state prison for not less than one (1) and not more than five (5) years; . . . “31. In criminalizing the conduct of women in Idaho for submitting to abortions provided by licensed health care providers practicing both in and outside of the State of Idaho, Idaho Code § 18-605(2) imposes an undue burden on those women’s right to obtain an abortion as guaranteed by the Fourteenth Amendment of the U.S. Constitution.

Should Hearn and McCormack be able to overturn the “unlawful abortion” law in the state, obtaining medication off the internet in order to terminate a pregnancy would be a viable option. Despite the fact that there are only two clinics in the state that provide abortions, women would no longer face large economic burdens in order to end unwanted pregnancies, nor worry that they could face jail time simply by enacting their constitutional right to choose.

Hearn has said he is willing to see the case all the way to the Supreme Court. What begins in the 9th Circuit this week could end all the way in D.C., and has the potential to expand abortion access for everyone along the way.

News Abortion

Parental Notification Law Struck Down in Alaska

Michelle D. Anderson

"The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions," said Janet Crepps, senior counsel at the Center for Reproductive Rights. "This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm."

The Alaska Supreme Court has struck down a state law requiring physicians to give the parents, guardians, or custodians of teenage minors a two-day notice before performing an abortion.

The court ruled that the parental notification law, which applies to teenagers younger than 18, violated the Alaska Constitution’s equal protection guarantee and could not be enforced.

The ruling stems from an Anchorage Superior Court decision that involved the case of Planned Parenthood of the Great Northwest and the Hawaiian Islands and physicians Dr. Jan Whitefield and Dr. Susan Lemagie against the State of Alaska and the notification law’s sponsors.

In the lower court ruling, a judge denied Planned Parenthood’s requested preliminary injunction against the law as a whole and went on to uphold the majority of the notification law.

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Planned Parenthood and the physicians had appealed that superior court ruling and asked for a reversal on both equal protection and privacy grounds.

Meanwhile, the State of Alaska and the notification law’s sponsors appealed the court’s decision to strike some of its provisions and the court’s ruling.

The notification law came about after an initiative approved by voters in August 2010. The law applied to “unemancipated, unmarried minors” younger than 18 seeking to terminate a pregnancy and only makes exceptions in documented cases of abuse and medical emergencies, such as one in which the pregnant person’s life is in danger.

Justice Daniel E. Winfree wrote in the majority opinion that the anti-choice law created “considerable tension between a minor’s fundamental privacy right to reproductive choice and how the State may advance its compelling interests.”

He said the law was discriminatory and that it could unjustifiably burden “the fundamental privacy rights only of minors seeking pregnancy termination, rather than [equally] to all pregnant minors.”

Chief Justice Craig Stowers dissented, arguing that the majority’s opinion “unjustifiably” departed from the Alaska Supreme Court’s prior approval of parental notification.

Stowers said the opinion “misapplies our equal protection case law by comparing two groups that are not similarly situated, and fails to consider how other states have handled similar questions related to parental notification laws.”

Center for Reproductive Rights (CRR) officials praised the court’s ruling, saying that Alaska’s vulnerable teenagers will now be relieved of additional burdensome hurdles in accessing abortion care. Attorneys from the American Civil Liberties Union, CRR, and Planned Parenthood represented plaintiffs in the case.

Janet Crepps, senior counsel at CRR, said in a statement that the “decision provides important protection to the safety and well-being of young women who need to end a pregnancy.”

“The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions. This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm,” Crepps said.

CRR officials also noted that most young women seeking abortion care involve a parent, but some do not because they live an abusive or unsafe home.

The American Medical Association, the American College of Obstetricians and Gynecologists, and the Society for Adolescent Medicine have said minors’ access to confidential reproductive health services should be protected, according to CRR.

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.