I wonder if you heard about it; last week the Ninth Circuit Court of Appeals made a landmark ruling in an abortion case. The federal court affirmed an injunction issued by the Ninth Circuit Court that barred Idaho from prosecuting Jennie Linn McCormack for aborting her fetus using drugs ordered on the Internet. This decision was made on the grounds that the restrictive abortion statutes in Idaho placed an undue burden on women seeking the legal medical procedure. Strangely, the case got essentially zero national media coverage. There was nothing regarding this ruling in The New York Times, on NPR or CNN. Considering all the recent debate regarding abortion (it is an election year after all), where was the media? Shouldn’t we have been paying attention to this case? Let me explain why we didn’t.
Ms. McCormack was arrested in Jan. 2011 after ordering RU-486, aka “the abortion pill,” off the Internet to terminate her pregnancy. She had turned to the drug after realizing she had neither the time nor resources to seek an abortion from one of Idaho’s legally authorized abortion clinics (I could only find two of these after a fairly thorough Internet search). Both clinics are located in Boise, which is over four hours away from her home in Pocatello, Idaho. She was arrested under Idaho statute 18-606, a law that criminalizes women seeking to induce their own abortions. Ms. McCormack faced a felony charge that carries up to a five-year prison sentence and a $5,000 fine.
This seems like the beginning of a good challenge to laws restricting abortion. Ms. McCormack has expressed her desire to take her case all the way up to the Supreme Court if she has to and abortion is undoubtedly a contentious issue in this election cycle. Great legal challenges on timely issues have yielded landmark rulings on constitutional issues before. Brown v. Board, Loving v.Virginia and Lawrence v. Texas—which struck down segregation in schools, bans on interracial marriage and anti-sodomy laws respectively—come to mind. Each case represents hard work by groups like the NAACP, the American Civil Liberties Union and Lambda Legal. The NAACP spent years combing the nation for the perfect city, the perfect group of families and the perfect challenger to undermine segregation in schools. They needed a set of litigants who were unimpugnable in order to minimize attacks on their case, in order to make it about the law rather than the people involved.
Ms. McCormack, however, is not this type of challenger. Her story abounds with the kinds of controversies that complicate the abortion debate. To begin with, at the time the case was brought, she was an unemployed single mother of three and reliant on child support. She had received an abortion less than two years prior. The fetus she aborted at home was 20 weeks old, a stage of development at which abortion is highly controversial. After aborting the fetus at home, she kept it frozen in a box on her back porch. All of this took place in a conservative town in a conservative state.
Any one of these issues alone could be enough to bring about an all-out throw down between pro-life and pro-choice groups, but together they create a gnarled thread of issues that twirl together into a knot too complicated for people to even begin to unravel. Many of the issues drive at the very core of even the most staunchly pro-choice individual’s beliefs about abortion. It is a situation so complicated that pro-choice groups are shying away, refusing to come to Ms. McCormack’s aid in her battle against the Idaho statutes.
Pragmatically, this is a wise choice. Pro-lifers would see red before the legal questions at the core of the case could even be raised. Pro-choicers back away, unable to stand behind the complicated details of this case. Yet, what options does this leave Ms. McCormack? It seems that she must fight alone. To me, both reactions are unacceptable; both reactions make the case about Ms. McCormack rather than about the true issue at the core of this lawsuit.
The unwillingness of the nation to take on this case is proof that neither side of the abortion debate is ready to fully confront the issue. We are stuck in a place of blame where the details of each case cloud the fundamental consideration of law, which is ultimately a question about individual rights. This is disappointing, because we as a nation must sort through the inherent complications that come from resolving the legal questions at the center of the abortion debate if there ever is going to be a resolution of the issue. This is how hard problems are solved.
Moreover, we must recognize that abortion is not a black-and-white issue. Pro-choicers must accept that some women will use abortion in ways that make us uncomfortable, and pro-lifers should recognize that continuing to restrict abortion means care will be denied to women who need it. Both options are uncomfortable, and less-than-ideal cases, like Ms. McCormack’s, will be the majority rather than the exceptions. This case is the perfect example of what the abortion debate needs to be: uncertain and uncomfortable.
I see Jennie Linn McCormack as a warrior, as a hero. She knows she is not unimpugnable. She knows her battle is uphill. Yet, she chooses to continue her fight against what she sees as fundamentally wrong even though she faces judgment from every side. She might not be the sort of challenger the ACLU wants, but she is in fact a far better one than we—a nation unwilling to give her case the fair and reasonable attention it merits—deserve.
Meredith Jewitt is a first-year law student and the former editorial page editor of The Chronicle.