First Lawsuit Filed on Fetal Pain-Based 20-Week Abortion Ban

State   Steven Ertelt   Aug 31, 2011   |   1:30PM    Boise, ID

An Idaho woman has filed a lawsuit seeking to overturn a law in Idaho that bans abortions after 20 weeks of pregnancy based on the scientific evidence showing unborn children feel pain during pregnancy.

Idaho Governor C. L. “Butch” Otter signed the Pain-Capable Unborn Child Protection Act into law in April, making Idaho the third state to protect from abortion the life of the pain-capable child. The law is a new trend in pro-life legislation that prohibits abortions and places the focus on the unborn child as a victim during the abortion procedure and this suit is the first lawsuit brought against any of the similar laws state legislatures have passed.

Jennie Linn McCormack, a 33-year-old Pocatello resident, is behind the lawsuit and she brought it, according to a Reuters report, because she faced prosecution for engaging in a self-abortion using an abortion drug she purchased off the Internet.

McCormack’s attorneys brought a class action lawsuit against an older law, from 1972, that makes it a crime for a woman to self-abort her own pregnancy. McCormack was charged under that law but the charge was later dismissed due to lack of evidence. The lawsuit claims the law discriminates against women living in rural Idaho who don’t have each access to urban-based abortion facilities.

Court documents Reuters cited show McCormack, a mother of three, didn’t want to drive to Salt Lake City for an abortion and she ordered the mifepristone and misoprostol pills that combine to form the RU 486 abortion drug, off the Internet.

Richard Hearn, her attorney, told Reuters that the lawsuit covers the Pain-Capable Unborn Child Protection Act, even though it was not in place at the time of her abortion, because he contends it sets up similar barriers to legal abortions.

The case is McCormack vs. Hiedeman, 4:11-cv-00397, and it seeks to prohibit state prosecutors from charging other women under the 1972 law and abortion practitioners under the fetal pain-based abortion ban.

The Idaho law is based on a Nebraska statute that was the first in the nation to institute the abortion ban based on the fetal pain research. The Idaho law passed this year after Nebraska initiated the Pain Capable Unborn Child Protection Act in 2010.

Julie Schmit-Albin, Executive Director of Nebraska Right to Life, emailed LifeNews and said Nebraska has yet to face any legal challenges from abortion advocates over the Nebraska law. The law was put together in part to expand on the Supreme Court’s decision upholding the partial-birth abortion ban Congress passed with the hopes of getting the same five Justices to agree to erode Roe v. Wade further by upholding a ban on abortions after 20 weeks.

“Upon receiving court pleadings in the challenge to Idaho’s ban on abortion at 20 weeks based upon pain, it appears that their main argument on the pain statute is that it needs a health exception,” Schmit-Albin said. “Idaho’s law, which mirrors Nebraska’s law, contains a medical emergency section which covers those conditions which would pose a serious risk to the mother’s life and health. Most maternal-fetal specialists would argue that in the event of a condition which poses a serious risk to the mother, the mother would be hospitalized until her condition stabilized and once the mother is stabilized the need for an abortion for a threat to the mother’s life is no longer the case.”

Schmit-Albin said Lincoln, Nebraska maternal-fetal specialist Dr. Sean Kenney testified before the Idaho Legislature earlier this year in support of the fetal pain ban. He also testified before the Nebraska Legislature in 2010 for LB 1103, Nebraska’s ban.

As drafted by National Right to Life’s state legislation department, the model Pain-Capable Unborn Child Protection Act protects from abortion unborn children who are capable of feeling pain except when the mother “has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert death or to avert serious risk of substantial or irreversible physical impairment of a major bodily function or…it is necessary to preserve the life of an unborn child.”

The science behind the concept of fetal pain is fully established and Dr. Steven Zielinski, an internal medicine physician from Oregon, is one of the leading researchers into it. He first published reports in the 1980s to validate research showing evidence for it.

He has testified before Congress that an unborn child could feel pain at “eight-and-a-half weeks and possibly earlier” and that a baby before birth “under the right circumstances, is capable of crying.”

He and his colleagues Dr. Vincent J. Collins and Thomas J. Marzen  were the top researchers to point to fetal pain decades ago. Collins, before his death, was Professor of Anesthesiology at Northwestern University and the University of Illinois and author of Principles of Anesthesiology, one of the leading medical texts on the control of pain.

“The functioning neurological structures necessary to suffer pain are developed early in a child’s development in the womb,” they wrote.

“Functioning neurological structures necessary for pain sensation are in place as early as 8 weeks, but certainly by 13 1/2 weeks of gestation. Sensory nerves, including nociceptors, reach the skin of the fetus before the 9th week of gestation. The first detectable brain activity occurs in the thalamus between the 8th and 10th weeks. The movement of electrical impulses through the neural fibers and spinal column takes place between 8 and 9 weeks gestation. By 13 1/2 weeks, the entire sensory nervous system functions as a whole in all parts of the body,” they continued.

With Zielinski and his colleagues the first to provide the scientific basis for the concept of fetal pain, Dr. Kanwaljeet Anand of the University of Arkansas Medical Center has provided further research to substantiate their work.

“The neural pathways are present for pain to be experienced quite early by unborn babies,” explains Steven Calvin, M.D., perinatologist, chair of the Program in Human Rights Medicine, University of Minnesota, where he teaches obstetrics.