Woman Who Took Abortion Drug|Sues Prosecutor Who Put Her in Jail

POCATELLO, Idaho - A woman who took took medication that induces an abortion, and went to jail for it, has sued the prosecutor who put her there. Her federal class action claims that the 40-year-old law under which she was prosecuted is unconstitutional.

Jennie Linn McCormack sued Bannock County Prosecuting Attorney Mark Hiedeman. Bannock's county seat is Pocatello.

"Plaintiff McCormack is unmarried and was unemployed in the winter of 2010," the complaint states. "She presently has three children, ages 2, 11 and 18.

"In December of 2010 Plaintiff McCormack was pregnant and believed she could not afford either the expense or time away from Bannock County associated with having an abortion in Salt Lake City, Utah.

"Not wanting to have another child, plaintiff McCormack considered terminating her pregnancy in Bannock County, Idaho by ingesting one or more medications she reasonably believed to have been prescribed by a health care provider practicing outside Bannock County, Idaho to induce an abortion."

McCormack bought RU-486, generically known as mifepristone, over the Internet from a health care provider.

On May 18 this year, she was arrested at her home and led away in handcuffs, according to local news reports. Police allegedly found a fetus in a box at her home. Hearn said that police were sent to McCormack's home after receiving a tip from an unnamed acquaintance in whom she confided, months after the abortion.

McCormack was charged with "the public offense of unlawful abortion Idaho Code § 18-606," according to her complaint.

"She thinks her constitutional rights were infringed when they charged her the first time," her attorney, Richard Hearn, told Courthouse News. "We had them [the charges] dismissed for lack of sufficient evidence."

Hearn is a physician as well as an attorney. The criminal charges against McCormack were dismissed by a magistrate court at the preliminary hearing on Aug. 24.

Had McCormack been convicted, she could have faced up to five years in prison and a $5,000 fine.

Had she terminated the pregnancy later, she would have violated Idaho's new "fetal pain law," which outlaws abortions after 20 weeks because of the state's claim that fetuses can feel pain at five months.

McCormack's lawsuit claims, in part, that the law is unconstitutional because there is no exception for mothers' health.

The bulk of the lawsuit, however, challenges the Idaho law forbidding self-administered abortions, to which women living in rural areas may resort, faced with the alternative of traveling to receive more expensive, and in some cases cost-prohibitive surgical abortions.

The complaint states: "Women residing in southeast Idaho seeking to terminate a pregnancy currently must travel outside southeast Idaho to obtain elective abortions.

"For some women residing in southeast Idaho, the additional costs associated with travel to an abortion provider will significantly burden those women's access to a safe and affordable abortion.

"For other women residing in southeast Idaho, the time required to travel to an abortion provider will significantly burden those women's access to a safe and convenient abortion."

The complaint states that the drugs used to induce abortions are approved by the FDA and provide women in rural areas an option to traveling for costly procedures. Anti-abortion groups have clamored against RU-486 for over a decade, and some states have laws that either limit administration of the drug to physicians only or make it a felony to prescribe it.

"In the early stages of pregnancy, physicians providing abortion services in the United States often prescribe medications approved by the U.S. Federal Drug Agency to cause women to abort their pregnancies medically, i.e., non-surgically, in the privacy of their own homes," according to the complaint. "Such 'medical' abortions are generally less expensive than surgical abortions."

Hearn said that although the state's complaint against McCormack's was dismissed, the prosecutor, defendant Hiedeman, may refile the charges.

"We have filed against him in Federal Court on behalf of her and other women so he can't do that," Hearn told Courthouse News in a telephone interview on Monday.

The lawsuit was brought "pursuant to Federal Rule of Civil Procedure 23(b)(2)" to prevent Hiedeman from "criminally prosecuting or threatening to prosecute any woman who seeks an abortion in Bannock County for violating Idaho Code Title 18, Chapter 6.

It also was brought "pursuant to 42 U.S.C. § 1983" to prevent Hiedeman from "criminally prosecuting or threatening to prosecute any person licensed in Idaho to provide health care for violating Idaho Code Title 18, Chapters 5 and 6, as a result of that person's alleged involvement with any woman seeking an abortion in Bannock County."

It claims that enforcing the Idaho codes will "violate the dormant Commerce Clause of the U.S. Constitution thereby unduly burdening plaintiffs from exercising their right to privacy and liberty as guaranteed under the Fourteenth Amendment to the U.S. Constitution."

Hiedeman could not be reached for comment Monday.

"She didn't start this battle," Hearn said. "The state prosecutor charged her with the crime and she is still trying to defend herself. She wants to protect all women who are going through what she is going through."

The complaint also cites violations of due process, of equal protection, of the Establishment Clause, the vagueness of the laws, and undue burden.

Co-counsel with Hearn are John Ingelstrom and Jonathan Volyn, all of Racine, Olson, Nye, Budge & Bailey, of Pocatello.

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