Abortion-Drug User Ducks Idaho Prosecution

(CN) - An Idaho prosecutor cannot pursue charges against a woman who terminated a pregnancy with drugs bought over the Internet, the 9th Circuit ruled Tuesday.

Mark Hiedeman, prosecuting attorney in Bannock County, Idaho, charged Jennie Linn McCormack with a felony in 2011 for violating state statutes prohibiting abortions outside of a hospital or clinic.

Since abortion services are not available near her home in southeast Idaho, McCormack would have needed to undergo the procedure in Salt Lake City, Utah.

McCormack's doctor prescribed her pregnancy-termination drugs approved by the Food and Drug Administration, which she then procured over the Internet.

A state magistrate judge dismissed the charges against McCormack without prejudice, and Hiedeman has yet to refile. If convicted, McCormack would have faced up to five years behind bars.

After she challenged the statutes on constitutional grounds with a federal class action, U.S. District Judge B. Lynn Winmill, in Pocatello, Idaho, issued a preliminary injunction that barred Hiedeman from enforcing two of the laws.

The 9th Circuit affirmed Tuesday, though it limited the scope of the injunction to McCormack only because the lower court still has not certified her class.

The Portland-based federal appeals court refused to let Hiedeman prosecute women for using abortion-inducing medications under laws traditionally meant to protect them from unlicensed and unsafe abortion providers.

"There 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," Judge Harry Pregerson wrote for a three-judge panel.

Hiedeman argued that prosecuting McCormack would align with Roe v. Wade's clear support of a state interest in safe abortions, but the panel was wholly unconvinced.

"Hiedeman's attempt to equate these Supreme Court principles with the Idaho statute at issue in this case is unpersuasive," Pregerson wrote. "These principles, embraced by the Supreme Court, recognize that women's health is an important interest for the state and one that is considered in crafting abortion statutes. These principles, however, in no way recognize, permit, or stand for the proposition that a state may prosecute a pregnant woman who seeks an abortion in a manner that may not be authorized by the state's statute, including when a pregnant woman receives physician- prescribed medication to terminate her pregnancy."

The threat of such prosecutions would place substantial, and likely unconstitutional, obstacles in the path of women seeking an abortion, according to the decision.McCormack wanted the circuit to extend the injunction to a subsection of the statute known as the Pain-Capable Unborn Child Protection Act. The panel concluded, however, that McCormack lacks standing to challenge the statute, which bans "non-therapeutic" abortions at and after 20 weeks since she had not been threatened with prosecution under it.

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