Jennie Linn McCormack, an unmarried mother of three, was charged by Bannock County prosecutors last year after she ingested medication to induce an abortion. The drugs were approved for use by the US Food and Drug Administration and prescribed over the Internet, according to the opinion from the 9th US Circuit Court of Appeals.
Idaho requires that abortions be performed during the first trimester in a hospital, doctor's office or clinic. No licensed healthcare providers offered the procedure near where McCormack lived in southeastern Idaho, the opinion said.
The criminal case against McCormack was dismissed, and she filed a lawsuit claimingIdaho's abortion law is unconstitutional. An Idaho federal judge issued an injunction saying the law can't be enforced.
In its ruling on Tuesday, the 9th Circuit largely agreed. Criminal abortion statutes traditionally apply to individuals such as doctors, who perform unhealthy abortions that threaten women's safety, the unanimous three-judge panel said.
Those laws shouldn't apply to pregnant women themselves, according to the opinion.
"There can be no doubt," the court said, "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."
At this point in the litigation, however, the injunction should only apply to McCormack, and not women generally, the court said. McCormack may ultimately get a judgment that strikes down the law entirely, the 9th Circuit said.
Bannock County prosecutors and McCormack's attorney could not immediately be reached for comment.
The case in the 9th Circuit is Jennie Linn McCormack vs. Mark Hiedeman, 11-36010.
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"Undue Burden on women (individual) in seeking what is rightful and lawful. "
The case revolves around this concept: The state cannot pass a law of littering and punish the individuals for littering if the state does not provide garbage cans in public places. Similarly, the state cannot charge an individual for murder, if the state cannot provide the security of its citizens. The state also has an equal burden to prove that it does its part for the compliance of the law. The state is not the master of its citizens.
Idaho cannot deprive the women what is her right by undermining her access to it by creating undue burden in access to the clinic or the providers, even if no one wants it.
The burden of citizens' compliance to laws is on the state and not on the citizen. A tall order, which makes both the citizens and the state to behave well.