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 Appeals found 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.