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 an 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 (p. 10924-25). This account is badly incomplete, as it ignores the legitimate societal concern with protecting the unborn, 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).
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