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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.

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

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 Appealsfound 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.

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. 

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