By NBC's Isolde Raftery and Reuters
A U.S. appeals court on Tuesday said an Idaho woman who aborted her pregnancy by taking pills instead of traveling to a clinic or hospital as required by state law should not have been criminally charged.
In the same opinion, the 9th U.S. Circuit Court of Appeals court upheld a district court decision that ruled the woman could not challenge a state law that bans most abortions after 19 weeks under the premise that fetuses feel pain at that stage.
In 2010, Jennie Linn McCormack, an unmarried mother of three, was pregnant, unemployed and receiving between $200 and $250 a month in child support, according to the court opinion.
McCormack searched for an abortion provider but there were none in Bannock County, where she lived, the court opinion said, adding in a footnote that 87 percent of?counties in the?U.S. do not have abortion providers.??
She knew she could get an abortion in Salt Lake City, Utah, about 138 miles away, but that would cost between $400 and $2,000, the opinion said.
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Instead McCormack chose RU-486, a medication that triggers an abortion, which she ordered online. The drug is approved for use by the U.S. Food and Drug Administration and prescribed over the Internet, according to the opinion from the 9th U.S. Circuit Court of Appeals. The drug is for early pregnancies, however, and McCormack was much farther along.
She confided in a friend, and that friend's sister tipped off police, National Public Radio reported. Police found the fetus wrapped on her back porch.
McCormack?was charged by Bannock County prosecutors last year on the grounds that 1972 Idaho law requires abortions be performed by a physician at a licensed abortion facility. If convicted, she would have faced up to five years in prison.
At the time of her arrest, Idaho passed another statute making it illegal for women to obtain abortions after their 19th week of pregnancy, the AP reported. In the Pain-Capable Unborn Child Protection Act, lawmakers argued that fetuses start feeling pain around 20 weeks.
?There are many cases where they prosecute or threaten to prosecute a doctor," Richard Hearn, McCormack's attorney, told NPR. "There are not so many where they?ve prosecuted a woman.?
Read the appeals court opinion (.pdf)
The criminal case against McCormack was dismissed and on Sept. 16, 2011, she filed a lawsuit claiming that Idaho's abortion law is unconstitutional.
An Idaho federal judge issued an injunction saying the law can't be enforced.
In its ruling Tuesday, the 9th Circuit largely agreed with McCormack. Criminal abortion statutes typically apply to doctors, who perform unhealthy abortions that threaten women's safety, the unanimous three-judge panel said.
Those laws should not apply to pregnant women, the opinion said, because women cannot be expected to ?explore the intricacies of state abortion statutes to ensure that they and their provider act within the Idaho abortion statute framework."
Under the law, the appeals court said, women in McCormack's position have three choices: To carefully read Idaho law, violate the law or not get an abortion.
The opinion also?points to a letter the state's attorney general wrote about the abortion law, in which he says that he "plainly intends to erect a substantial obstacle to the right to choose." ?
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At this point in the litigation, however, the injunction should only apply to McCormack, and not women generally, the court said. McCormack may ultimately get a judgment that strikes down the law entirely, the 9th Circuit said.
The appellate court also ruled Tuesday that some other Idaho abortion laws are likely unconstitutional, the Associated Press reported, including one barring medication-induced abortions.
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