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Appeals Court Panel Says Woman cannot be prosecuted for self-administered RU486 abortion

by | Sep 11, 2012

By Dave Andrusko

A three-judge panel of the 9th U.S. Court of Appeals held today that a part of Idaho’s abortion law may be unconstitutional but also ruled that the plaintiff did not have standing to challenge the state’s Pain-Capable Unborn Child Protection Act.

In the 37-page opinion, written by Judge Harry Pregerson, the panel agreed with a district court that Jennie McCormack , who self-aborted using RU486 ordered over the Internet, is likely to succeed with her challenge to the law. However, the appeals court said, for now,  the injunction barring enforcement would apply only to Ms. McCormack.

According to Judge Pregerson, Mark Hiedeman, the prosecuting attorney in Bannock County, Idaho, argued that laws requiring that only physicians perform abortions can be applied with equal force to women who do not compile with state abortion law, “including when a pregnant woman receives physician-prescribed medication to terminate her pregnancy.”  But Pregerson wrote there is no Supreme Court precedent for such an argument and in fact  the portion of Idaho’s law that the panel enjoined constituted an “undue burden” on her right to an abortion.

“There can be no doubt,” Pregerson wrote, “that requiring women to explore the intricacies of state abortion statutes to ensure that they and their provider act within the Idaho abortion statute framework, results in an ‘undue burden’ on a woman seeking an abortion of a nonviable fetus.”

McCormack, the mother of three, aborted in late 2010. Hiedeman charged her in May 2011 but the case was dismissed the following September. McCormack then challenged the law in federal court, as she did the Pain-Capable Unborn Child Protection Act.

Judge Pregerson emphasized more than once the McCormack had stated the “medications” were purchased over the Internet and prescribed by an unnamed physician who lived outside Bannock County. Mary Spaulding Balch, the director of NRLC’s Department of State Legislation, was aghast.

“What this decision means is that no state can protect a woman from unscrupulous Internet hacks who will offer ‘quick fixes’ that can be lethal to women suffering crisis pregnancy.”  Balch said it was reminiscent of 1800s and the newspaper ads for herbal medicines to “bring on menses”—self-abort.

Pregerson made short work of McCormack’s argument that she had standing to challenge the Pain-Capable Unborn Child Protection Act: “PUCPA was not even enacted at the time the criminal complaint was filed.” Nor did she face a threat of prosecution under Pain-Capable Unborn Child Protection Act, Pregerson wrote. He also found unpersuasive McCormack’s “testimony that she would seek an abortion if she became pregnant again.”

But the very last footnote in the decision reads, “Our holding does not foreclose other constitutional challenges to PUCPA, in the event that a party can demonstrate standing.”

The stories today, of course, talk little about the background to the case and why pro-abortionists were not eager to see McCormack challenge the Pain-Capable Unborn Child Protection Act.

McCormick said she thought she was about 12 weeks pregnant but was, in fact, 18-21 weeks pregnant. According to a story written for Newsweek by Nancy Hass, McCormack asked her sister to buy the RU486 over the Internet and send it to her (at a cost of around $200). No one, not even the craziest pro-abortionist, recommends using RU486 past the ninth week of pregnancy.

And when she saw the size of the baby she was scared, according to Hass. “She didn’t know what to do—‘I was paralyzed,’ she says—so she put it in a box on her porch, and, terrified, called a friend. That friend then called his sister, who reported McCormack to the police.”

Hass wrote that McCormack is “a bad case” for pro-abortionists.  “The fact that McCormack kept a 4-month-old fetus frozen in the winter chill on her back porch is the sort of ghoulish image pro-choice activists try to avoid.”

Categories: RU486
Tags: RU486