Idaho’s Fetal Pain-Based Abortion Ban Challenged in Court

State   |   Andrew Bair   |   Apr 18, 2012   |   3:41PM   |   Boise, ID

Idaho’s recently enacted Pain-Capable Unborn Child Protection Act faces another pro-abortion challenge to its constitutionality.

Rick Hearn, the lawyer representing the plaintiff in the first challenge to the law is behind the second. In addition to his profession as a lawyer, Hearn is an M.D. specializing in arthritis and kidney disease. He has never actually performed an abortion in his practice of medicine.

Hearn’s first case challenging the Pain-Capable Unborn Child Protection Act was unsuccessful when a judge refused to make it a class-action case. In that challenge, Hearn represented Jennie Linn McCormack.

According to the Associated Press, “McCormack’s involvement began the day before Christmas in 2010, months before Idaho’s fetal pain law went into effect. Authorities say that day McCormack gave herself an abortion using pills purchased online. A friend of McCormack’s sister became upset, authorities have said, and called police in the rural eastern town of Pocatello, reporting an illegal abortion. Investigators looked into the claim and discovered a fetus in a box at McCormack’s home. Examiners later said the fetus had been developing for more than five months. Authorities charged McCormack with performing an unlawful abortion, which makes it a felony for anyone other than a health care professional to be involved with terminating a pregnancy.”

The charges were dismissed “without prejudice,” meaning McCormack could be charged again at any time in the future. Unhappy by the result of the first challenge, Hearn decided to challenge the law himself. Hearn describes the law as an overreach jeopardizing “the small people” and, because of how it’s written, nearly impossible for anyone but a doctor to challenge. “I’m intervening in order to assert Jennie’s right to obtain an abortion from a physician,” Hearn said. “And the courts have said that doctors can assert the rights of patients, especially in abortion contexts,” Hearn told the Associated Press.

As the plaintiff in the second challenge, Hearn is using his status as a doctor, even though he has never done an abortion, in an effort to make sure that if the case is successful, it applies broadly enough to get McCormack off the hook for good.

Deputy Idaho Attorney General Clay Smith dismissed Hearn’s move as merely an attempt to introduce issues that McCormack has no standing to present.

Passed overwhelmingly by the Idaho Legislature and signed into law by pro-life Governor Butch Otter, the Pain-Capable Unborn Child Protection Act bans abortion after 20 weeks based on scientific evidence that unborn children are capable of feeling pain.



“Modern medical science provides substantial compelling evidence that unborn children recoil from painful stimuli, that their stress hormones increase when they are subjected to any painful stimuli, and that they require anesthesia for fetal surgery. Therefore, the state of Idaho has a compelling interest in protecting unborn children who are capable of feeling pain from abortion,” said Mary Spaulding Balch, JD, Director of State Legislation for the National Right to Life Committee. “If this suit goes forward, we are confident that Idaho will prevail in protecting the lives of pain-capable unborn children from abortion.”

“The intent of the bill is to protect the innocent,” said Idaho State Rep. Lynn Luker (R). While the federal ban on partial-birth abortion outlawed the horrific D& X (dilation and extraction) abortion technique, late term abortions persist in the United States using other methods. Often, the preferred method for a late-term abortion is the D & E (dilation and evacuation) technique, which involves the dismemberment of the child in the womb.

Click here for a medical illustration of a D & E abortion: