News Law and Policy

Federal Court Strikes Idaho’s 20-Week Abortion Ban

Jessica Mason Pieklo

A sweeping decision hands reproductive rights activists one of their strongest victories yet.

Late Wednesday, Judge B. Lynn Winmill of the United States District Court for the District of Idaho issued an expansive ruling striking a series of abortion restrictions, including Idaho’s law banning abortions after 20 weeks of pregnancy and a law that makes it a felony for anyone other than a doctor to perform an abortion. The decision is the latest in a series of cases that are set to redefine the battle over choice in the coming years.

The ruling is in the case of Jennie Lynn McCormack, whose name has become synonymous with the push for criminalizing abortions and arresting women for having them. Police charged McCormack with a felony under Idaho’s “self-abortion” statute—which makes it a crime for anyone other than a doctor to perform an abortion—after they received a third-party tip and discovered a discarded fetus at McCormack’s residence. McCormack admitted she had obtained abortion-inducing drugs online and administered them because she couldn’t afford to go to a doctor for an abortion, nor could she afford to care for another child. McCormack’s prosecution was the first of its kind under the law and was seen by many as a test case in criminalizing abortions.

The criminal charge against McCormack was dismissed for lack of evidence, but the judge left open the possibility that prosecutors could re-file should they find more evidence. In response, McCormack filed a civil suit challenging the constitutionality of the ban and other Idaho restrictions. The case has been winding through the legal system in various forms for at least a year, with a lower court granting an injunction to block the bill and the Ninth Circuit Court of Appeals affirming that injunction in a decision that forcefully pushed back against a slew of anti-choice decisions from the federal courts.

Wednesday’s ruling came after the state tried to dismiss McCormack’s remaining civil claims, arguing they are moot because prosecutors have decided they will not re-file charges against McCormack. Essentially, the state argued, now that they’ve promised not to prosecute McCormack, the entire disagreement about the merits of Idaho’s abortion restrictions should just be brushed aside.

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Thankfully, the lower court disagreed that McCormack’s claims were moot, holding that so long as the law is on the books, prosecutors remain able to criminally charge women for failing to follow the strict dictates of the law. In fact, the court detailed, the evidence suggests the opposite. “[Prosecutor Mark] Hiedeman never repudiated the statute as unconstitutional, and he did not cease McCormack’s prosecution because he believed the prosecution was unlawful,”Judge Winmill wrote. “Instead, he stopped the prosecution because it would waste his office’s resources and would not be ‘in the interests of justice.’ And he only ceased his prosecutorial efforts after he lost his Ninth Circuit appeal, which fairly leaves open the possibility that he changed course to deprive the Court of jurisdiction,” the judge continued. “Most importantly, Hiedeman’s promise not to prosecute, with nothing more, would not bind his successors. These facts do not make it ‘absolutely clear’ that the prosecution against McCormack would never recur.'”

This set the tone for the rest of the 42-page decision. In it, Winmill declares the state’s so-called fetal pain ban to be an undue burden on a woman’s right to choose an abortion, relying on language from the earlier Ninth Circuit decision that affirmed the injunction blocking parts the law. As Winmill quoted, “‘There can be no doubt,’ the Ninth Circuit explained, ‘that requiring women to explore the intricacies of state abortion statutes to ensure that they and their provider act within Idaho’s abortion statute framework, results in an ‘undue burden’ on a woman seeking an abortion of a nonviable fetus.'” He continued, “The Ninth Circuit faulted Idaho statutes for heaping ‘yet another substantial obstacle in the already overburdened path that McCormack and pregnant women like her face when deciding whether to obtain an abortion …. These obstacles, coupled with the threat of criminal prosecution based on an abortion provider’s purported failure to comply with state abortion regulations, are simply too much.”

The decision also eviscerates the Idaho legislature and the conservatives who control it, declaring there to be “compelling evidence” that those conservatives had an “improper purpose” when passing the ban. “The state may not rely on its interest in the potential life of the fetus to place a substantial obstacle to abortion before viability in women’s paths,” Winmill wrote.

Unlike other restrictions on access to abortion before viability, such as, for example, waiting periods, there is no justification that the 20-week ban is designed to assist a woman in deciding whether to terminate a pregnancy, the court held. Likewise, the ban cannot be justified under any concern for the health of the mother. “When the Idaho legislature enacted the [Pain-Capable Unborn Child Protection Act (PUCPA)], no mention was made of the health or safety of the mother. Rather, as the short title of the statute suggests—the Pain-Capable Unborn Child Protection Act—the primary purpose of the PUCPA is to protect a fetus ‘from the state at which substantial medical evidence indicates that they are capable of feeling pain.’ This language plainly indicates that the purpose of the PUCPA’s categorical ban is to protect the fetus- not the mother,” Winmill wrote. “In essence, the PUCPA embodies a legislative judgement equating viability with twenty weeks’ gestational age, which the [United States] Supreme Court expressly forbids.” As the U.S. Supreme Court explained in Planned Parenthood v. Danforth, “it is not the proper function of the legislature or the courts to place viability, which is essentially a medical concept, to a specific point in the gestation period.”

Winmill added that evidence of those improper motives appear in a statute that is so vaguely worded it allows for “arbitrary enforcement by police and prosecutors who may determine that a provider has unlawfully performed an abortion by failing to meet the undefined standard,” which is exactly what happened in the McCormack case. They also appear in the state’s “clear disregard” of controlling Supreme Court precedent and the state’s “apparent determination to define viability in a manner specifically and repeatedly condemned by the Supreme Court.”

In addition to striking the state’s 20-week ban, the decision also struck two other Idaho abortion restrictions, including one that requires first-trimester abortions to be performed by a physician in a staffed office or clinic, making most medical abortions illegal, and one that requires second-trimester abortions to be performed in a hospital, as well as a statute that criminalizes the act of self-abortion. “Historically, abortion statutes sought to protect pregnant females from third parties providing dangerous abortions,” Winmill wrote. “As a result, most states’ abortion laws traditionally criminalized the behavior of third parties to protect the health of pregnant women—they did not punish women for obtaining an abortion. By punishing women, Idaho’s abortion statute is therefore unusual.”

Like the Ninth Circuit decision before it, this decision clearly lays the case against over-zealous anti-choice legislation. There is no “proper purpose” in passing laws that serve only to ban abortions pre-viability. Also, in painstaking detail, it rejects framing pushed by anti-choice activists prioritizing the rights of a fetus, as protected by the state, over the rights of a pregnant person.

The decision comes at an important time in the battle over pre-viability abortion bans. Arizona’s 20-week ban is currently under consideration at the Ninth Circuit, while legislators in Arkansas overrode a veto by Democratic Gov. Mike Beebe to pass a 12-week “heartbeat” ban that will undoubtedly face immediate legal challenge.

Attorneys for the state of Idaho can appeal the decision. If they do, it will provide the Ninth Circuit yet another opportunity to solidify an emerging line of precedent declaring pre-viability bans unconstitutional—a risk they may not be willing to take right now.

“This ruling is a warning to other states around the country passing bans on abortion that are unconstitutional and dangerous for women,” Planned Parenthood Action Fund President Cecile Richards said in an email statement. “Voters and the courts agree that politicians should not be making personal health care decisions for women, but this decision comes just a day after Arkansas passed the most extreme abortion ban in the United States. These laws are outrageous and unconstitutional, and they will not stand.”

News Politics

Tim Kaine Clarifies Position on Federal Funding for Abortion, Is ‘for the Hyde Amendment’

Ally Boguhn

The Democratic Party voiced its support for rolling back the restriction on federal funding for abortion care in its platform, which was voted through this week.

Sen. Tim Kaine (D-VA), Hillary Clinton’s running mate, clarified during an interview with CNN on Friday that he still supports the Hyde Amendment’s ban on federal funding for abortion care.

During Kaine’s appearance on New Day, host Alisyn Camerota asked the Democrat’s vice presidential nominee whether he was “for or against” the ban on funding for abortion. Kaine replied that he had “been for the Hyde Amendment,” adding “I haven’t changed my position on that.”

Robby Mook, Clinton’s campaign manager, told CNN on Sunday that Kaine had “said that he will stand with Secretary Clinton to defend a woman’s right to choose, to repeal the Hyde amendment.” Another Clinton spokesperson later clarified to the network that Kaine’s commitment had been “made privately.”

The Democratic Party voiced its support for rolling back the restriction on federal funding for abortion care in its platform, which was voted through this week.

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“We will continue to oppose—and seek to overturn—federal and state laws and policies that impede a woman’s access to abortion, including by repealing the Hyde Amendment,” reads the platform.

Kaine this month told the Weekly Standard that he was not aware that the party had put language outlining support for repealing Hyde into the platform, noting that he had “traditionally been a supporter of the Hyde amendment.”

Clinton has repeatedly said that she supports Hyde’s repeal, calling the abortion care restriction “hard to justify.”

Abortion rights advocates say that Hyde presents a major obstacle to abortion access in the United States.

“The Hyde amendment is a violent piece of legislation that keeps anyone on Medicaid from accessing healthcare and denies them full control over their lives,” Yamani Hernandez, executive director of the National Network of Abortion Funds, said in a statement. “Whether or not folks believe in the broken U.S. political system, we are all impacted by the policies that it produces. … Abortion access issues go well beyond insurance and the ability to pay, but removing the Hyde Amendment will take us light years closer to where we need to be.”

News Law and Policy

Texas Lawmaker’s ‘Coerced Abortion’ Campaign ‘Wildly Divorced From Reality’

Teddy Wilson

Anti-choice groups and lawmakers in Texas are charging that coerced abortion has reached epidemic levels, citing bogus research published by researchers who oppose legal abortion care.

A Texas GOP lawmaker has teamed up with an anti-choice organization to raise awareness about the supposed prevalence of forced or coerced abortion, which critics say is “wildly divorced from reality.”

Rep. Molly White (R-Belton) during a press conference at the state capitol on July 13 announced an effort to raise awareness among public officials and law enforcement that forced abortion is illegal in Texas.

White said in a statement that she is proud to work alongside The Justice Foundation (TJF), an anti-choice group, in its efforts to tell law enforcement officers about their role in intervening when a pregnant person is being forced to terminate a pregnancy. 

“Because the law against forced abortions in Texas is not well known, The Justice Foundation is offering free training to police departments and child protective service offices throughout the State on the subject of forced abortion,” White said.

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White was joined at the press conference by Allan Parker, the president of The Justice Foundation, a “Christian faith-based organization” that represents clients in lawsuits related to conservative political causes.

Parker told Rewire that by partnering with White and anti-choice crisis pregnancy centers (CPCs), TJF hopes to reach a wider audience.

“We will partner with anyone interested in stopping forced abortions,” Parker said. “That’s why we’re expanding it to police, social workers, and in the fall we’re going to do school counselors.”

White only has a few months remaining in office, after being defeated in a closely contested Republican primary election in March. She leaves office after serving one term in the state GOP-dominated legislature, but her short time there was marked by controversy.

During the Texas Muslim Capitol Day, she directed her staff to “ask representatives from the Muslim community to renounce Islamic terrorist groups and publicly announce allegiance to America and our laws.”

Heather Busby, executive director of NARAL Pro-Choice Texas, said in an email to Rewire that White’s education initiative overstates the prevalence of coerced abortion. “Molly White’s so-called ‘forced abortion’ campaign is yet another example that shows she is wildly divorced from reality,” Busby said.

There is limited data on the how often people are forced or coerced to end a pregnancy, but Parker alleges that the majority of those who have abortions may be forced or coerced.

‘Extremely common but hidden’

“I would say that they are extremely common but hidden,” Parker said. “I would would say coerced or forced abortion range from 25 percent to 60 percent. But, it’s a little hard be to accurate at this point with our data.”

Parker said that if “a very conservative 10 percent” of the about 60,000 abortions that occur per year in Texas were due to coercion, that would mean there are about 6,000 women per year in the state that are forced to have an abortion. Parker believes that percentage is much higher.

“I believe the number is closer to 50 percent, in my opinion,” Parker said. 

There were 54,902 abortions in Texas in 2014, according to recently released statistics from the Texas Department of State Health Services (DSHS). The state does not collect data on the reasons people seek abortion care. 

White and Parker referenced an oft cited study on coerced abortion pushed by the anti-choice movement.

“According to one published study, sixty-four percent of American women who had abortions felt forced or unduly pressured by someone else to have an unwanted abortion,” White said in a statement.

This statistic is found in a 2004 study about abortion and traumatic stress that was co-authored by David Reardon, Vincent Rue, and Priscilla Coleman, all of whom are among the handful of doctors and scientists whose research is often promoted by anti-choice activists.

The study was cited in a report by the Elliot Institute for Social Sciences Research, an anti-choice organization founded by Reardon. 

Other research suggests far fewer pregnant people are coerced into having an abortion.

Less than 2 percent of women surveyed in 1987 and 2004 reported that a partner or parent wanting them to abort was the most important reason they sought the abortion, according to a report by the Guttmacher Institute.

That same report found that 24 percent of women surveyed in 1987 and 14 percent surveyed in 2004 listed “husband or partner wants me to have an abortion” as one of the reasons that “contributed to their decision to have an abortion.” Eight percent in 1987 and 6 percent in 2004 listed “parents want me to have an abortion” as a contributing factor.

‘Flawed research’ and ‘misinformation’  

Busby said that White used “flawed research” to lobby for legislation aimed at preventing coerced abortions in Texas.

“Since she filed her bogus coerced abortion bill—which did not pass—last year, she has repeatedly cited flawed research and now is partnering with the Justice Foundation, an organization known to disseminate misinformation and shameful materials to crisis pregnancy centers,” Busby said.  

White sponsored or co-sponsored dozens of bills during the 2015 legislative session, including several anti-choice bills. The bills she sponsored included proposals to increase requirements for abortion clinics, restrict minors’ access to abortion care, and ban health insurance coverage of abortion services.

White also sponsored HB 1648, which would have required a law enforcement officer to notify the Department of Family and Protective Services if they received information indicating that a person has coerced, forced, or attempted to coerce a pregnant minor to have or seek abortion care.

The bill was met by skepticism by both Republican lawmakers and anti-choice activists.

State affairs committee chairman Rep. Byron Cook (R-Corsicana) told White during a committee hearing the bill needed to be revised, reported the Texas Tribune.

“This committee has passed out a number of landmark pieces of legislation in this area, and the one thing I think we’ve learned is they have to be extremely well-crafted,” Cook said. “My suggestion is that you get some real legal folks to help engage on this, so if you can keep this moving forward you can potentially have the success others have had.”

‘Very small piece of the puzzle of a much larger problem’

White testified before the state affairs committee that there is a connection between women who are victims of domestic or sexual violence and women who are coerced to have an abortion. “Pregnant women are most frequently victims of domestic violence,” White said. “Their partners often threaten violence and abuse if the woman continues her pregnancy.”

There is research that suggests a connection between coerced abortion and domestic and sexual violence.

Dr. Elizabeth Miller, associate professor of pediatrics at the University of Pittsburgh, told the American Independent that coerced abortion cannot be removed from the discussion of reproductive coercion.

“Coerced abortion is a very small piece of the puzzle of a much larger problem, which is violence against women and the impact it has on her health,” Miller said. “To focus on the minutia of coerced abortion really takes away from the really broad problem of domestic violence.”

A 2010 study co-authored by Miller surveyed about 1,300 men and found that 33 percent reported having been involved in a pregnancy that ended in abortion; 8 percent reported having at one point sought to prevent a female partner from seeking abortion care; and 4 percent reported having “sought to compel” a female partner to seek an abortion.

Another study co-authored by Miller in 2010 found that among the 1,300 young women surveyed at reproductive health clinics in Northern California, about one in five said they had experienced pregnancy coercion; 15 percent of the survey respondents said they had experienced birth control sabotage.

‘Tactic to intimidate and coerce women into not choosing to have an abortion’

TJF’s so-called Center Against Forced Abortions claims to provide legal resources to pregnant people who are being forced or coerced into terminating a pregnancy. The website includes several documents available as “resources.”

One of the documents, a letter addressed to “father of your child in the womb,” states that that “you may not force, coerce, or unduly pressure the mother of your child in the womb to have an abortion,” and that you could face “criminal charge of fetal homicide.”

The letter states that any attempt to “force, unduly pressure, or coerce” a women to have an abortion could be subject to civil and criminal charges, including prosecution under the Federal Unborn Victims of Violence Act.

The document cites the 2007 case Lawrence v. State as an example of how one could be prosecuted under Texas law.

“What anti-choice activists are doing here is really egregious,” said Jessica Mason Pieklo, Rewire’s vice president of Law and the Courts. “They are using a case where a man intentionally shot his pregnant girlfriend and was charged with murder for both her death and the death of the fetus as an example of reproductive coercion. That’s not reproductive coercion. That is extreme domestic violence.”

“To use a horrific case of domestic violence that resulted in a woman’s murder as cover for yet another anti-abortion restriction is the very definition of callousness,” Mason Pieklo added.

Among the other resources that TJF provides is a document produced by Life Dynamics, a prominent anti-choice organization based in Denton, Texas.

Parker said a patient might go to a “pregnancy resource center,” fill out the document, and staff will “send that to all the abortionists in the area that they can find out about. Often that will stop an abortion. That’s about 98 percent successful, I would say.”

Reproductive rights advocates contend that the document is intended to mislead pregnant people into believing they have signed away their legal rights to abortion care.

Abortion providers around the country who are familiar with the document said it has been used for years to deceive and intimidate patients and providers by threatening them with legal action should they go through with obtaining or providing an abortion.

Vicki Saporta, president and CEO of the National Abortion Federation, previously told Rewire that abortion providers from across the country have reported receiving the forms.

“It’s just another tactic to intimidate and coerce women into not choosing to have an abortion—tricking women into thinking they have signed this and discouraging them from going through with their initial decision and inclination,” Saporta said.

Busby said that the types of tactics used by TFJ and other anti-choice organizations are a form of coercion.

“Everyone deserves to make decisions about abortion free of coercion, including not being coerced by crisis pregnancy centers,” Busby said. “Anyone’s decision to have an abortion should be free of shame and stigma, which crisis pregnancy centers and groups like the Justice Foundation perpetuate.”

“Law enforcement would be well advised to seek their own legal advice, rather than rely on this so-called ‘training,” Busby said.