Analysis Law and Policy

Finally a Limit Is Reached: Ninth Circuit Rules McCormack Can’t Be Prosecuted For Her Abortion

Jessica Mason Pieklo

The Ninth Circuit Court of Appeals finds a limit to what states can pass in the name of restricting abortion access: criminal prosecutions of terminated pregnancies.

In terms of restricting access to abortion rights, the Supreme Court in Planned Parenthood v. Casey gave states a broad license to pass nearly any conceivable kind of restriction so long as that restriction did not pose an undue burden on a woman’s right to chose to terminate a pregnancy. When faced with the question of what constitutes an undue burden, the federal judiciary has overwhelmingly come down on the side of supporting restrictions at the expense of women’s access to abortion care.

We’ve seen this most recently when the Fifth Circuit Court of Appeals held that mandating invasive and medically-unnecessary ultrasounds prior to an abortion did not pose an undue burden on a woman seeking an abortion. We saw it again when the Eighth Circuit Court of Appeals found that forcing women to listen to misleading and inaccurate medical disclosures designed to persuade them from having an abortion was also not an undue burden on that woman.  But, according to the Ninth Circuit, there is a limit to how a state can restrict abortion access and that limit appears to be criminally prosecuting those women who seek and have abortions.

The specific issue before the Ninth Circuit was whether the state can impose criminal liability on pregnant women for failing to abide by the state’s abortion statutes, namely obtaining an “unlawful abortion” by buying medications online to terminate her pregnancy. Jennie Linn McCormack, a single mother of three, needed an abortion but, because there are no licensed abortion providers in Southeastern Idaho she couldn’t find one.  McCormack also could not afford the trip to Salt Lake City and the cost of the procedure, which by now would be more expensive due to the delay to access a provider. In crisis and in need of an abortion McCormack went online and ordered the necessary drugs for a medication abortion in violation of a state law that requires all abortions to be performed at a hospital or medical clinic.

Prosecutors charged McCormack under the state’s unlawful abortion statute. An Idaho federal judge initially dismissed the charges against her without prejudice, meaning prosecutors could re-file charges later while the court heard challenges to the constitutionality of the law. After that initial dismissal McCormack also challenged the laws, including a more recent 20-week abortion ban herself, arguing they were unconstitutional restrictions on her right to chose an abortion. As it turns out, the Ninth Circuit Court of Appeals agreed. Mostly.

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In a strongly-worded opinion Judge Harry Pregerson plainly and unapologetically embraced the idea that prosecuting women for terminating pregnancies won’t end abortion, it will just create a whole new class of criminals. That burden is obvious and apparent to the court. The law “puts an undue burden on women seeking abortions by requiring them to police their provider’s compliance with Idaho’s regulations” the court said.

Furthermore, the “choice” women have in Idaho is no choice at all. “Under this Idaho statute, a pregnant woman in McCormack’s position has three options: (1) carefully read the Idaho abortion statutes to ensure that she and her provider are in compliance with the Idaho laws to avoid felony prosecution; (2) violate the law either knowingly or unknowingly in an attempt to obtain an abortion; or (3) refrain altogether from exercising her right to choose an abortion.”

For once it was the plight of the pregnant woman, and not the state’s interest in policing her pregnancy, that caught the court’s attention. The court took great pains to acknowledge the barriers that women–especially low-income women–face in obtaining abortion services, including lack of providers, financial obstacles, and harassment at clinics.

“This Idaho statute heaps yet another substantial obstacle in the already overburdened path that McCormack and pregnant women like her face when deciding whether to obtain an abortion” the court held, in barring McCormack’s prosecution.

“We are thrilled by the Ninth Circuit’s unequivocal statement that statutes that make it a crime for women to seek abortion care pose an undue burden on their ability to terminate their pregnancies,” said Janet Chung, attorney for Legal Voice, a women’s legal advocacy group that filed a friend-of-the-court brief supporting Ms. McCormack.

“This is an important decision that explicitly rejects Idaho’s claim that the state may use its criminal abortion laws to punish pregnant women who end their pregnancies,” said Lynn Paltrow, Executive Director of National Advocates for Pregnant Women. She added, “Leading ‘pro-life’ organizations have repeated claimed that their efforts will not result in women going to jail, yet none opposed the arrest of Ms. McCormack.”

The importance of the decision cannot be overstated, in part because so many other courts have willingly, and in the case of Judge Edith Jones in the Fifth Circuit, gleefuly disregarded the realities of life for women like McCormack when upholding laws that serve no purpose other than to erect barriers for those women to access they care they need and the care they have a constitutionally protected right to receive.

If there is a dark spot in the ruling it is that given the procedural posture of the case the court couldn’t strike the law in its entirety meaning that, for now, other pregnant women could still face prosecution in Idaho for doing what McCormack did, or something similar. And while McCormack had also tried to affirmatively challenge the state’s 20-week fetal pain ban, the court held she lacked the standing to do so meaning that law also stands. Most importantly though, the idea that there is even a dispute as to whether or not women should face criminal prosecutions for terminating pregnancies, and that the outcome of that dispute was even momentarily in doubt, is a stark reminder of just how restricted this constitutional right has become. 

Roundups Law and Policy

Gavel Drop: Republicans Can’t Help But Play Politics With the Judiciary

Jessica Mason Pieklo & Imani Gandy

Republicans have a good grip on the courts and are fighting hard to keep it that way.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

Linda Greenhouse has another don’t-miss column in the New York Times on how the GOP outsourced the judicial nomination process to the National Rifle Association.

Meanwhile, Dahlia Lithwick has this smart piece on how we know the U.S. Supreme Court is the biggest election issue this year: The Republicans refuse to talk about it.

The American Academy of Pediatrics is urging doctors to fill in the blanks left by “abstinence-centric” sex education and talk to their young patients about issues including sexual consent and gender identity.

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Good news from Alaska, where the state’s supreme court struck down its parental notification law.

Bad news from Virginia, though, where the supreme court struck down Democratic Gov. Terry McAuliffe’s executive order restoring voting rights to more than 200,000 felons.

Wisconsin Gov. Scott Walker (R) will leave behind one of the most politicized state supreme courts in modern history.

Turns out all those health gadgets and apps leave their users vulnerable to inadvertently disclosing private health data.

Julie Rovner breaks down the strategies anti-choice advocates are considering after their Supreme Court loss in Whole Woman’s Health v. Hellerstedt.   

Finally, Becca Andrews at Mother Jones writes that Texas intends to keep passing abortion restrictions based on junk science, despite its loss in Whole Woman’s Health.

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

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But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

071midyearstateeligibilitytable

The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

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In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.