The Abortion Victory No One’s Talking About

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Photo: Phil Walter/2006 Getty Images

Abortion-rights advocates recently saw something they don’t see very often: a win. Jennie Linn McCormack was a mother of three in Pocatello, Idaho, when she took abortion pills purchased on the internet to end a pregnancy that turned out to be further along than she’d thought — between 19 and 23 weeks. She was charged under an Idaho law with having a second-trimester at-home abortion, and faced up to five years in prison. Her lawyer, Richard Hearn (whom I first met in 2012 when reporting on McCormack for The New Republic), succeeded in having the charges against her dismissed, and then took it a step further: He filed a class action suit in federal court seeking to have that law taken off the books. On May 29, they won at the Ninth Circuit.

The case found extra resonance this week, when a Georgia woman named Kenlissia Jones was arrested for actions similar to McCormack’s and initially charged with malice murder, for which she could have faced life in prison or even the death penalty. After an outcry from both sides of the abortion debate, the prosecutor decided not to prosecute her for murder, but still plans to try her for possession of a dangerous drug. Richard Hearn explains what his rare victory means for abortion law in this country, and for women like Jones.

What does this win at the Ninth Circuit mean for American women?
It means many different things depending on what parts of the decision one focuses on. A critically important one is Jennie’s case. She was prosecuted criminally, and now the district court has said — and the Ninth Circuit has affirmed — that the law in Idaho under which she was prosecuted is unconstitutional. The law — which said if a woman had an abortion that was illegal, including if the doctor did something wrong, like in the wrong week, or with the wrong medication, she could go to jail. That Idaho law is now no longer there. This is the only successful constitutional challenge to a criminal prosecution of a woman for inducing an abortion in the nation’s history.

Because, in addition to being a lawyer, you're a doctor, you intervened as a co-plaintiff, saying that this law prevented you from potentially prescribing this medication.
The court found Jennie didn’t have standing to challenge laws that punished doctors. I still think that’s bad. It certainly affects Jennie and other women! How does that not harm them? But on my part of the case, the Ninth Circuit found that three laws affecting doctors were unconstitutional. One was that your office had to be “appropriately” equipped with “satisfactory” arrangements with a  hospital. That was struck down for being vague. Two: that all abortions in the second trimester had to be done in a hospital. That is no longer true. Three: the so-called “Fetal Pain” law that would say abortions couldn’t be done after twenty weeks was declared unconstitutional, because it had no exception for the life of the mother.   

What is the impact of this? Who does it affect?
Technically it only prevents local prosecutors in Bannock County from enforcing these laws against Bannock County doctors. But, the fact that the Ninth Circuit declared these laws unconstitutional means their reasoning can be used if there were a similar law in the Ninth Circuit’s states [California, Alaska, Idaho, Arizona, Montana, Nevada, Oregon, Washington, Hawaii]. And that same reasoning can be used in New York or Texas, too.

Do you expect courts around the country will see more of these cases, because of the rise in home abortions using drugs purchased online?
I think DIY abortions are already exploding. They are usually done early in pregnancy, and very few people are being prosecuted for it, because few people know about it. The Georgia case [Kenlissia Jones] is an exception, because she told the social worker when she went to the hospital. Most women don’t go to the hospital and they don’t tell anyone. That’s why the number of official abortions is going down. Because it’s so easy. These Texas laws (they may close down the remaining abortion clinics in that state) will force women not to go to Planned Parenthood, because they can’t get there or can’t afford it.

As a medical doctor, do you consider abortion medication safe?
If you’re early in your pregnancy, it’s very safe compared to carrying the baby to term.

A doctor is often not necessary to safely and effectively terminate a pregnancy in the first trimester and, in those rare circumstances when a doctor would be necessary, the woman can go to the Emergency Department of any local hospital. You will get appropriate medical care. Insurance pays for that. Medicaid pays for that. But it will not pay if the woman says, “I took those pills.” If my daughter needed to terminate her pregnancy, I would take her to a doctor. But if you can’t go to the doctor, and you are early in pregnancy, you can safely take the pills. That is going to be very difficult for the state to regulate out of existence. It may not be the best option, but if the laws keep going this way, they will push women to do this.

So DIY abortion today isn’t the same as it used to be.
Before Roe v. Wade, at-home abortion meant people were dying. We don’t want to go back to that.

Why hasn't there been more news coverage of this significant legal victory? Did I miss it?
You didn’t miss it. The New York Times has not even mentioned it at all until this morning when Gail Collins called. Meanwhile, the Fifth Circuit decision was on page one. I have a couple of ideas why. This case has always had difficulty because of Jennie being poor and the circumstances of her case, and the choices she made. Planned Parenthood has certainly not supported this case and was not a party to this case, and if Planned Parenthood isn’t supporting a woman’s right-to-choose case it doesn’t get the coverage. I think they’re in good faith but seem very afraid of supporting DIY abortions for women. I want women to go to doctors too. But for women like Jennie and the lady in Georgia who can’t for financial or logistical reasons, then this is what they’re going to do.

Did mainstream abortion rights groups try to discourage you from the case?
Many advocates for women’s rights appear to want women’s real stories and their real-life troubles out of courts. They want plaintiffs to be M.D./Ph.D.s from Yale or Harvard. You don’t see women in abortion cases. You see doctors arguing in coats and ties. I never received a call that said, “Do not defend Jennie.” But I did receive calls from major women’s rights organizations voicing concern that this case would end up at the Supreme Court and get an adverse ruling because of the facts of Jennie’s case.

What did you learn about abortion in America in the course of working on this case?
A woman’s right to terminate her pregnancy is recognized for the rich all over the United States. There is no woman who is rich who can’t get in a car or on a plane and get safe and effective treatment. But in some states, poor, young women are cut completely out of reproductive health. It’s two Americas for women’s reproductive heath. What the poor and the middle class are going to do is they are going to bypass clinics. They will get pills from the internet or Mexico. It’s just a fact.

How is Jennie doing now?
She’s relieved. She’s been in this limbo now for four years, with the threat of going to prison hanging over her head, and people in the community thinking she’s a murderer. I finally reached her today. It took a while, because she couldn’t afford cell service for a while. That’s poverty, and that’s what got her into this situation in the first place.

This interview has been edited and condensed.