An Idaho woman can challenge a state law making it a crime to have an abortion, said a federal appeals court that also reversed an order barring enforcement of the statute.
The U.S. Court of Appeals in San Francisco said the law couldn’t be enforced against Jennie Linn McCormack, an unemployed mother of three who became pregnant in 2010 while unmarried. It ruled that a lower court erred when it issued a preliminary injunction blocking the Idaho law that makes it a felony for a woman to purposely abort a pregnancy unless the procedure is performed in the first trimester by a doctor.
The ruling is the first time a federal appeals court has found it unconstitutional to criminalize abortions performed before a fetus is viable, said Richard Hearn, McCormack’s attorney. The court also barred prosecutors from charging McCormack with violating another part of the law that outlaws second-trimester abortions, he said.
The 1973 law makes violations punishable by as long as five years in prison and a fine of as much as $5,000. McCormack is the first woman to be prosecuted under the law, Hearn said.
If McCormack wins her lawsuit, the law couldn’t be enforced against other women, Hearn said in a phone interview. The state could seek further review of the appeals court ruling, he said.
McCormack allegedly used a prescription drug, obtained from a physician through the Internet, to induce an abortion in 2010, the court said. She was charged by Bannock County prosecutors with violating Idaho’s law. The criminal case was dismissed, and McCormack sued to overturn the statute.
McCormack is likely to succeed on the merits of her case because the law “imposes an undue burden on a woman’s ability to terminate her pregnancy,” a three-judge panel of the appeals court ruled today.
Kriss Bivens Cloyd, a spokeswoman for the Idaho attorney general’s office, said state lawyers were reviewing the ruling and declined to comment further.
The case is McCormack v. Hiedeman, 11-36010, U.S. Court of Appeals for the Ninth Circuit (San Francisco).