Put an Idaho law criminalizing abortions before two of the more liberal members of the U.S. Court of Appeals for the Ninth Circuit and you might expect some fireworks.
But Judges Harry Pregerson and Betty Fletcher were mostly quiet Monday during arguments in McCormack v. Hiedeman, 11-36010, despite vigorous arguments by advocates on both sides.
In McCormack, an Idaho distric judge enjoined a statute that subjects both women who have abortions and their health care providers to criminal penalties if certain medical standards aren't met. The statute also outlaws the use of abortifacients such as RU-486 that can be obtained over the Internet. "This statute quite plainly prohibits what I would refer to as self-abortions," Idaho Deputy Attorney General Clay Smith told the Ninth Circuit.
"There is a long line of precedent which establishes that states may enact legislation that limits the performance of abortions to physicians licensed in the state," Smith added, and there's no constitutional bar to applying such legislation to women.
Richard Hearn, an Idaho attorney who's also an M.D., said forcing women to "police their provider" creates an undue Burden under Planned Parenthood of Southeastern Pennsylvania v. Casey. "In the Bible it states sons should not be responsible for the sins of their fathers, but in Idaho, women seeking abortions may be held criminally liable for the conduct of their providers," Hearn told the court.
The 40-year-old law, which Smith said is seldom enforced, subjects women to up to five years in prison, with a minimum one-year term, according to Hearn. U.S. District Judge B. Lynn Winmill of Idaho enjoined enforcement of parts of the law last year after Bannock County Prosecuting Attorney Mark Hiedeman brought charges against Jennie McCormack. She has not directly admitted having an illegal abortion, but has stipulated that she had an unwanted pregnancy, could not easily obtain an abortion in Southeast Idaho, and learned that medications approved for use in the United States were available over the Internet.
At Monday's hearing, Judge Betty Fletcher asked several questions indicating she believes McCormack has standing to challenge the law. Judge Harry Pregerson asked Smith why Hiedeman was invoking the law now after more than 20 years in office -- Smith said he didn't know Hiedeman's subjective thought process. U.S. District Judge Donald Walter of the Western District of Louisiana, sitting by designation, asked if the parties agreed that the injunction is overbroad as applied to third trimester abortions. Hearn said he did not agree.