Reproductive Rights

Ninth Circuit Rules Idaho’s Abortion Ban and Several Abortion Restrictions Unconstitutional

In a major victory for women’s reproductive rights, the US Court of Appeals for the Ninth Circuit last week upheld a lower court ruling striking down Idaho’s 20-week abortion ban, ruling that the law was “facially unconstitutional” because it banned abortions before viability, in direct violation of Roe v. Wade.

McCormack
via Robyn Twomey for Newsweek

This is the second time the Ninth Circuit has ruled against a 20-week abortion ban. In 2013, the Ninth Circuit held that Arizona’s 20-week ban was unconstitutional. Arizona, in an attempt to challenge Roe v. Wade, asked the US Supreme Court to review the Ninth Circuit’s decision, but the Supreme Court declined review in January 2014.

Despite the unequivocal stance from the federal judiciary that 20-week abortion bans violate the US Constitution, the US House of Representatives passed a federal 20-week abortion ban last month by a 242-184 vote. The vote was mostly along party lines. At the time, House Democratic Leader Nancy Pelosi (D-CA) summed up the measure as “another radical and unconstitutional effort to dismantle women’s right to comprehensive health care.” 

In its opinion, the Ninth Circuit also found unconstitutional an Idaho provision that would require all second trimester abortions to be performed in a hospital and ruled that another provision was unconstitutionally vague. The latter provision would require first trimester abortions to be performed in a hospital, physician’s office, or clinic that is “properly staffed” and that has “satisfactory arrangements.”

The case, McCormack v. Herzog, arose after an Idaho woman, Jennie McCormack, a single mother of three, was arrested for inducing a medication abortion with mifepristone she obtained over the internet. According to McCormack, she opted to take the medication because she could not find a licensed abortion provider in southeastern Idaho, a state which was given a “failing grade” in clinic access and overall reproductive health care by the Population Institute last year.

Idaho prosecutors charged McCormack with a felony, showing the willingness of prosecutors to criminalize women who have abortions. The criminal charges were eventually dismissed without prejudice (meaning that prosecutors could refile a case against McCormack if they chose). McCormack then filed this federal lawsuit challenging Idaho’s laws. Her attorney, also a doctor, then joined the suit on behalf of himself and his patients.

“Political efforts to prohibit and recriminalize some or all abortions are clearly efforts to permit prosecution and punishment of the women who have those abortions,” said Lynn Paltrow, Executive Director of the National Advocates for Pregnant Women, which filed court briefs in support of McCormack. “This important decision recognizes that women’s maternal and reproductive health decisions must be addressed as public health matters, not as crimes.”

This is not the first time in recent years that anti-abortion laws have been used to criminalize women. In Indiana, Purvi Patel was convicted of feticide and felony neglect and sentenced earlier this year to 20 years in prison for what she continually asserts was a miscarriage. Patel has since filed an appeal.

Patel’s case should set alarm bells ringing in the minds of all those concerned with the welfare of pregnant women,” write community activist Deepa Iyer and Feminist Majority Foundation Director of Policy & Research Gaylynn Burroughs in the Spring 2015 issue of Ms. magazine. “This case may indeed open the door to more legislative, criminal and legal attacks on pregnant women. We must work together to close this door, once and for all. The health and well-being of all women are at stake.” 

Media Resources: United States Court of Appeals Ninth Circuit, 5/29/15; National Advocates for Pregnant Women Press Release 5/29/15; Feminist Newswire 5/15/15, 4/29/15, 4/2/15, 1/12/15, 3/8/13; Congresswoman Nancy Pelosi, Press Release 5/15/15; Ms. Magazine, Spring 2015