When Pocatello police got a tip that Jennie Linn McCormack had ended her pregnancy by taking an abortion drug obtained over the Internet, they showed up at her apartment one day in January 2011 and demanded an explanation.
McCormack eventually took them out to her back porch, where the remains of her fetus were on the barbecue, wrapped up in a plastic bag and a cardboard box.
“My baby is in the box,” McCormack said. Officers uncovered the frozen remains of a 5-month-old fetus and erected crime scene tape around the porch before taking her to the police station and charging her with a felony.
The civil suit that followed, scheduled to be heard by the U.S. 9th Circuit Court of Appeals on July 9, asks the courts to reject as unconstitutional the law in Idaho – a state with only two abortion clinics – that makes it illegal to obtain abortion pills from out-of-state doctors over the Internet.
The case also marks the most significant constitutional legal challenge so far to so-called “fetal pain” statutes, adopted by Idaho and at least five other states. Such laws significantly shorten the window of time in which a woman can legally abort a fetus – in the case of Idaho, to 19 weeks.
In December 2010, McCormack, a 33-year-old single mother of three, found herself pregnant yet again. Unemployed and living off $250 a month in child support, she saw the idea of adding to her brood as unthinkable.
“I couldn’t do it. Not in the state I was in. My youngest was only 1 at the time,” she said in an interview.
She thought she was only about 14 weeks pregnant. The sole abortion providers in Idaho are in Boise and Twin Falls, several hours away, and she didn’t have a car. A little more than 18 months earlier, she’d had an abortion that cost $450; a later-term abortion could cost more than $2,000.
That’s when her sister in Mississippi ordered abortion pills from a website, which offers a perfunctory consultation with a physician, and sent them to her, according to the police investigation. Such pills account for about 17 percent of all U.S. abortions, though they are generally recommended only for pregnancies of less than nine weeks.
Police say the fetus was obviously much older than 14 weeks. It had fully formed facial features, tiny fingernails, hair. McCormack told officers she was intending to go to a doctor and hand it over, but then the police showed up — apparently after getting a tip from a friend’s sister.
At the time, Idaho had not yet passed its 2011 law severely limiting abortions past 19 weeks, when disputed research suggests fetuses might begin to feel pain. But McCormack had run afoul of a 1972 law that says abortions must be performed by a doctor – and, in the case of second-trimester abortions, in a hospital. That law was interpreted by prosecutors to mean that only Idaho-licensed physicians are authorized to dispense abortion pills.
That made her guilty of a felony, reasoned the Bannock County prosecuting attorney, Mark L. Hiedeman, who filed the charges.
“It just felt like it fit the statute,” Hiedeman said. “(And) this wasn’t the first time this has happened. She’s had abortions before, and miscarriages.”
Because there was no physical evidence – no sign of drugs in the fetus, no medicine package – a judge dismissed the criminal case, but left the door open to new charges if new evidence came to light.
McCormack filed suit and persuaded U.S. District Judge B. Lynn Winmill to issue a preliminary injunction preventing the county from bringing any new charge, against her or others, until the constitutionality of the law is resolved in federal court.
McCormack’s lawyer, Richard Hearn — who happens to be a doctor — has taken the unusual step of entering the case as a plaintiff himself, a tactic he hopes will allow him to also challenge the “fetal pain” law and other statutes that might hold doctors criminally liable for prescribing abortion drugs.
“It doesn’t do women any good to have a right to get an abortion if a state can punish any doctor who does it,” Hearn said. “If there are doctors who will prescribe these pills in California, let the women in Idaho utilize them without having to fly to Los Angeles, because a lot of women like Jennie can’t afford to go where those providers are.”