Court: Idaho woman can't challenge fetal pain law

Woman was charged with having an illegal abortion

By Rebecca Boone
Associated Press

BOISE, Idaho (AP) — A federal appeals court on Tuesday ended an Idaho woman’s challenge of a law banning some abortions that might cause fetal pain, saying she didn’t have legal standing to contest it because she wasn’t charged with that crime.

The development came in a broader lawsuit filed by Jennie Linn McCormack, who is believed to be the first person in the nation to sue over bans on conducting abortions after 20 weeks of pregnancy based on the premise that the fetus might feel pain. Idaho and several other states have the bans.
However, the court didn’t close the door on all challenges to the fetal pain law. McCormack’s lawyer, who is also a doctor and her co-plaintiff in the lawsuit, can still fight the ban in federal courts.

The appellate court also ruled Tuesday that some other Idaho abortion laws are likely unconstitutional, including one barring medication-induced abortions.
The decision was largely a win for McCormack, a Pocatello resident who sued Bannock County Prosecutor Mark Hiedeman after she was charged in May 2011 with having an illegal abortion.

Hiedeman alleged that McCormack used drugs she obtained over the Internet to terminate her pregnancy, which was more than five months along. The law requires that health professionals be involved in ending a pregnancy, and it carries a possible five-year sentence for a conviction.

Around the time McCormack was charged, Idaho lawmakers passed another statute making it illegal for women to obtain abortions after their 19th week of pregnancy, under the disputed premise that fetuses can feel pain starting at around 20 weeks.

The law contains a few exceptions, allowing abortions to occur later if the mother is at risk of death or severe impairment or if an abortion is necessary to preserve the life of a twin.

Though McCormack wasn’t charged under the fetal pain law, she challenged the constitutionality of such a ban in her lawsuit, contending she could face future prosecution if she became pregnant again.

The U.S. District Court in Boise previously found that she didn’t have standing to challenge the fetal pain law, and the three-judge panel of the appellate court agreed.

The appellate judges also said Idaho’s fetal pain law doesn’t have a chilling effect on doctors’ willingness to provide abortions after 19 weeks of gestation. They said the court record showed that even before the law was enacted, there were no doctors in southeastern Idaho willing to perform abortions after that time period.

The judges, however, ruled in McCormack’s favor on Idaho’s law requiring that health professionals perform abortions.

They found that the lower court’s order barring Hiedeman from charging McCormack under that law could stand, and that McCormack was likely to succeed in proving the law is unconstitutional because it puts an undue burden on a woman.

The ruling could help clear the way for women in Idaho to obtain abortion-inducing drugs like RU-486 over the Internet without fear of prosecution.
The appellate court found that Idaho’s health provider law essentially required a pregnant woman in McCormack’s position to carefully read the entire law to ensure that she and her provider were in compliance. Otherwise, she would risk knowingly or unknowingly violating the law, and could possibly face a felony, the panel said, noting the only sure way not to be prosecuted would be to refrain from exercising the right to an abortion altogether.

McCormack, who is poor, has three children and lives more than a hundred miles from the nearest abortion provider. She already faces plenty of obstacles in seeking an abortion, the court noted.

“The Idaho statute heaps yet another substantial obstacle in the already overburdened path that McCormack and pregnant women like her face when deciding whether to obtain an abortion,” Judge Harry Pregerson wrote for the unanimous panel.

The case now returns to Boise’s U.S. District Court. Kris Bivens-Cloyd, a spokeswoman for the Idaho attorney general’s office, had no immediate comment on the ruling, saying staff attorneys were still reviewing it.

McCormack’s attorney, Rick Hearn, is also a physician. Though he has never performed an abortion, he has intervened in the case as another plaintiff.
He told the court he would like to offer medication-induced abortions in the future, and that Idaho’s fetal pain and health provider laws unconstitutionally limit his rights.

Hearn told The Associated Press he was thrilled by Tuesday’s ruling, saying it shows it’s unconstitutional to prosecute any woman for an abortion carried out before a fetus is viable outside the womb.