The woman challenging the Idaho abortion laws says she brought her lawsuit after a district attorney tried to prosecute her for a self-induce abortion. The charges were dismissed, but form the basis for her claim that she fears injury from the enforcement of the Idaho laws. I have blogged previously about her claims related to the Pain-Capable Unborn Child Act here and here, but did not discuss her claim that a law prohibiting self-induced abortion is unconstitutional. This second claim raises several interesting policy and legal issues.
From a policy perspective, it is important to know how often women try to self-induce an abortion. Care2 Blog had an interesting posting on this topic several months ago, Could Self-Induced Abortions be on the Rise? The post identifies two journal articles addressing the topic, How Commonly Do US Patients Report Attempts to Self Induce? and Self-Induction Among Women in the United States. The first article appears in the American Journal of Obstetrics & Gynecology and reports that more than 2 percent of the 9,493 abortion patients surveyed had tried to induce abortions on their own. In the second study, published in the British journal, Reproductive Health Matters, 1,425 women responded to surveys in clinic waiting rooms, with 4.6 percent saying they had tried to induce their own abortions.
Both articles and the blog post suggest that self-abortion may be on the rise, due in part to the development of RU-486. While the potential for serious complications from RU-486 is not open to doubt (more on the effects here), abortion-rights activitists and prolife adovocates debate the frequency of complications and the need for strict regulation.
With increasing availability of the drug on the internet, there are growning concerns that a growing number of women, like the Plaintiff in the Idaho case, will simply order and take RU-486 with no medical supervision. In addition to the very real concerns for the health of these women, if the drug does not result in an abortion, the effects of the drug on the unborn child can be devasting.
Taking both the serious (but relatively rare) complications to women and the devasting harms suffered by children who survive the use of the drug while in utero, how should lawmakers and government lawyers respond to challenges to state statutes prohibiting self-abortions? If considering only the effect on women and not their children, are there sufficient safety concerns arising from the side-effects that sustain the state’s power to prohibit the activity? Do these laws more closely resemble state and federal laws on controlled substances or state prohibitions on suicide? I tend to think that, in light of the availability of medically supervised abortions, that the state has sufficient interest in the health and safety of women to sustain the prohibitions, but it is not hard to image some federal or state judge disagreeing.