The Right to Self-Abort? The Ninth Circuit Gets Cagey

The Ninth Circuit has broken new constitutional ground in its Sept. 11 decision in McCormack v. Hiedeman. According to the court, women have a constitutional right to engage in self-abortion – sort of.

Jennie McCormack, mother of three born children and pregnant with her fourth, reportedly obtained abortion pills over the Internet and self-aborted. Police found out about the abortion from a tip, came to her residence and, according to a Los Angeles Times article, “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.”  The news account added that “[o]fficers uncovered the frozen remains of a 5-month-old fetus [that] had fully formed facial features, tiny fingernails, hair.”

McCormack was prosecuted for an illegal abortion, but a state court dismissed the charges, while leaving open the possibility of charges being refiled. McCormack then sued in federal court, challenging the Idaho law, Idaho Code § 18-606, making it a crime for a woman to submit to an illegal abortion.

The federal district court granted a preliminary injunction against the enforcement of 18-606, and the local prosecutor appealed. The Ninth Circuit issued a decision affirming in part and reversing in part.

The opinion is in some ways a goodie bag for the pro-abortion movement. Judge Pregerson, writing for the three-judge panel, goes out of his way to plug favorite arguments of the abortion apologists. For example, he declares that abortion regulations have historically been adopted to protect women, the unspoken implication being that since abortions are so safe nowadays, there is no reason to prohibit them (pp. 10924-25). This account is badly incomplete, as it ignores the legitimate societal concern with protecting unborn children, a motivation that Roe v. Wade itself acknowledged, (pp. 141-142), and which the Supreme Court has repeatedly reaffirmed. Pregerson also laments the “anguish” of a woman contemplating abortion, while pointedly dismissing any notion that a woman could have mental trauma as a result of the abortion (p. 10934 & n.8). He goes on at length reciting the many reasons why abortion should be available, and the difficulty a pregnant woman may encounter in trying to abort her baby (p. 10934-36), while not breathing a word about the documented shoddy practices and deceptive tactics of abortion facilities. Pregerson rules that McCormack cannot validly challenge Idaho’s Pain-Capable Unborn Child Protection Act, which was not even in effect when McCormack self-aborted, yet he nevertheless takes gratuitous swipes at that statute (p. 10945 & n.13) and expressly notes that other persons may well challenge that law in a different case (p. 10950 n.14).

But at the heart of the McCormack decision is the question whether women have a constitutional right to self-abort. On that question, the Ninth Circuit opinion lays the groundwork for a “yes” answer, but does not quite get there.

First, as noted above, the court says abortion laws are there to protect women from unsafe abortions, and that virtually every abortion law exempts women from prosecution, implying that it would be nonsensical ever to treat a woman as an offender. Of course, that states properly recognize women as a second victim of abortion does not mean she has a constitutional right to use coat hanger or a drug cocktail or a gun to self-abort, even if done safely (if that is possible). (For an illustration of this scenario, consider the case of the woman who shot herself to induce an abortion. A court court ruled that the abortion law did not apply to the mother herself.)

Second, the court declares irrelevant the Supreme Court decisions upholding a ban on non-physician abortions, since those cases did not involve the prosecution of women for self-aborting (pp. 10928-30).

Third and most importantly, the court interprets the Idaho law as making a woman guilty of a felony if the abortionist violates the law. To get this curious meaning, the court adopts the following syllogism: A woman who submits to an illegal abortion commits a felony; if the abortionist breaks the law, then the abortion is illegal; therefore, the woman is criminally liable if the abortionist makes a legal misstep.

This bizarre interpretation of the Idaho law is decisive for the court: the Idaho law, says the court, “puts an undue burden on women seeking abortions by requiring them to police their provider’s compliance with Idaho’s regulations.” (p. 10932).

If that’s really what Idaho’s law means, then it certainly is a strange law. But in fact the Idaho statute says, “Except as permitted by this act:  . . . Every woman who knowingly submits to an abortion . . . or who purposely terminates her own pregnancy otherwise than by a live birth” etc. The normal rule is that statutes should be interpreted in a way that avoids unconstitutionality. Here, it would seem permissible to read the law only to apply to (1) knowingly submitting to an illegal abortion by a third party or (2) purposely committing an illegal self-abortion. And if that is the correct reading of the statute, then the woman is not guilty just because the abortionist broke some law or another, so long as she did not know the abortionist was breaking the law.

Be that as it may, if the Ninth Circuit is right that Idaho law has this weird meaning, then the decision in McCormack v. Hiedeman is not much of a precedent after all. Surely there are few, if any, states that make a woman criminally liable if she does not police the regulatory compliance of the abortion provider. And since the concern with women having to police third parties only applies where third parties in fact do or prescribe the abortion, the McCormack decision does not stand for a broader right to self-abort. Indeed, the Ninth Circuit emphasizes that this case deals with the situation “when a pregnant woman receives physician-prescribed medication to terminate her pregnancy.” (p. 10928). (That factual premise is dubious. McCormack’s complaint did not say in so many words that a physician prescribed the pills to McCormack. Instead it says, it much more squirrely fashion, that McCormack ingested “one or more medications she reasonably believed to have been prescribed by a health care provider practicing outside Bannock County, Idaho” (p. 10938). Prescribed by whom? To whom?)

The pro-life movement looks out for the interests of both expectant mothers and their babies, while the pro-abortion movement drives a wedge between the two. Both sides should agree, however, that it is in no one’s interest to have women engaging in destructive self-help medicine, essentially do-it-yourself back alley (or backyard) abortions. The Ninth Circuit unfortunately has laid the foundation for invention of a constitutional right to self-abort. And sad to say, there are those seem to think this would be a good thing.