Protecting women's decisions: Court rules woman cannot be prosecuted for self-inducing abortion

Protecting women's decisions: Court rules woman cannot be prosecuted for self-inducing abortion

Monday, September 17, 2012

Last week, the U.S. Court of Appeals for the Ninth Circuit published an opinion regarding self-induced abortions.  Idaho mother Jennie McCormack was charged with committing an “unlawful abortion” when she terminated her pregnancy by ordering RU-486 over the web.  McCormack is a single mother of three, was raised as a devout Mormon, and was barely scrapping by.  An abortion would have cost at least $500 and involved multiple trips to a clinic hours away, so she turned to the Internet.  As a result of deciding what was best for her family, she was prosecuted in Idaho under a myriad of laws that included a pre Roe law that criminalized women getting abortions and another that criminalized individuals other than physicians for performing abortions, and during her case, the prosecutor stated that “he was aghast at the idea that McCormack, an unmarried mother of three, was irresponsibly and repeatedly getting pregnant and not ‘protecting the fetus.’”

The Court of Appeals upheld the U.S. District Court for Idaho’s decision that McCormack could not be prosecuted because she was likely to succeed on her constitutional argument that Idaho’s criminal abortion laws enabled the prosecution and incarceration of women who have abortions.  The Court relied heavily on the arguments that McCormack’s attorney and the National Advocates for Pregnant Women and their allies made in issuing their ruling.  The Court ruled that women cannot be charged under “physician only” criminal statutes regarding abortion even if the law does not specifically say so, stating, “[T]here is no Supreme Court precedent that recognizes or suggests that third party criminal liability may extend to pregnant women who obtain an abortion in a manner inconsistent with state abortion statutes.”  Additionally, the Court emphasized the herculean obstacles that low-income women confront when accessing an abortion such as lack of providers, financial barriers, and harassment at clinics, and the medical, moral, and ethical factors women must weigh when making decisions about pregnancies.

The Latina Institute is thrilled that National Advocates for Pregnant Women and their partners, particularly McCormack’s attorney, successfully defeated Idaho’s attempt to criminalize women who are making wise decisions for their families.  However, as advocates for women’s health, including the right and access to have a safe abortion, we know that there will be other cases like this one.  In the future, it may be a Latina who is prosecuted under these laws.  Due to issues such as cultural and linguistic competency, geographic location, transportation, income, and lack of information, Latina women and others may turn to self-induced abortions.  In fact, we know that Latinas have needed to self induce abortions for the reasons stated above.   The laws on the books need to realistically support and protect the decisions women make about their pregnancies.  We don’t need laws that further erode, humiliate, and deny women the ability to make the right choices for themselves and their families.