JURIST - Paper Chase: Ninth Circuit restricts injunction on Idaho abortion law

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Tuesday narrowed the scope on a preliminary injunction [opinion, PDF] against a 1972 Idaho law that makes it a felony to end one's own pregnancy. Mother of three Jennie Linn McCormack was prosecuted in May 2011 under the criminal statute. McCormack filed suit [JURIST report] in August of last year seeking to prevent prosecution of other women under the criminal statute and challenging Idaho's recently enacted "fetal pain" anti-abortion statute [JURIST report] based on the claim that they pose unconstitutional barriers to abortion. Specifically, McCormack, who has a monthly income of less than $250, claims that the 1972 law discriminates against women of limited means by forcing them to obtain surgical procedures that are both costly and locally unavailable. The Ninth Circuit concluded that McCormack would likely succeed on the merits of her Constitutional challenge to the Idaho laws by demonstrating that "the statute presents a substantial obstacle to a woman's choice to undergo an abortion." However, the court also held that the district court's preliminary injunction was overly broad in that it should prohibit enforcement of the statutory provisions against McCormack alone, and not all other pregnant women. Finally, the court upheld the lower court's decision that McCormack lacked standing to challenge the fetal pain statute because she did not face prosecution under the law.

Idaho's new abortion law, passed in April 2011, makes it a felony to terminate a pregnancy after 20 weeks based on controversial science indicating a fetus may feel pain after 20 weeks of development. A judge in the US District Court for the District of Idaho [official website] issued a temporary injunction [JURIST report] in September 2011 preventing the state of Idaho from enforcing the law, and the prosecuting attorney Mark Hiedeman appealed. McCormack discovered she was pregnant and, using a combination of FDA-approved abortion pills obtained over the Internet in December, terminated her pregnancy at between 20 and 21 weeks of gestation. Because McCormack terminated her pregnancy before the new statute's passage she could not be prosecuted for its violation, and a judge dismissed for lack of evidence the charges brought under the 1972 law.