Federal Court Strikes Down Pro-Life Idaho Law Banning Abortions After 20 Weeks

National   |   Steven Ertelt   |   May 29, 2015   |   2:44PM   |   Boise, ID

A federal appeals court has struck down a pro-life law in Idaho that bans abortions after 20 weeks — just weeks after the House of Representatives passed a bill to ban abortions after 20 weeks because unborn babies feel intense pain in abortions.

Idaho Governor C. L. “Butch” Otter signed the Pain-Capable Unborn Child Protection Act into law in April 2011, making Idaho the third state at that time 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.

After he signed the law, Jennie Linn McCormack, a Pocatello resident, filed suit 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.

According to documents in the case, 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 court that overturned the law is the frequently-overturned 9th Circuit and it cited the banning of abortions pre-viability as the reason for striking the law. With new studies showing babies surviving earlier in pregnancy and studies confirming unborn babies feel pain at least at 20 weeks, the case is ripe for Supreme Court review and a potential decision moving up viability and a state’s ability to protect babies from abortions earlier in pregnancy.

The leading pro-life group behind the 20-week abortion ban welcomed the lower court ruling and said this appeals court ruling was merely the next step in getting to the Supreme Court and building on the Gonzalez decision upholding the partial-birth abortion ban to further ban and limit abortions.

A federal district court decision against the Idaho Pain-Capable Unborn Child Protection Act issued March 7, 2013, opens the way to an ultimate consideration by the United States Supreme Court whether mounting medical evidence that unborn children are capable of feeling pain supports a compelling state interest allowing protection of such children from abortion, the group told LifeNews.

“We have always recognized that it will take a decision by the Supreme Court to allow expanded protection of unborn children capable of feeling pain, and there are strong indications that five of the sitting Justices would look with sympathy on a law providing such protection,” Mary Spaulding Balch, J.D., director of state legislation for the National Right to Life Committee, told LifeNews previously. “The next step will be an appeal to the Ninth Circuit Court of Appeals, followed, after its decision, by a request to the U.S. Supreme Court to hear the case.”

A news report in The Hill provides more details about a federal appeals court striking the law down:

The 9th Circuit Court of Appeals said Idaho’s law violates Supreme Court precedent protecting abortions up to the point of viability for a fetus, which has been considered to be around 24 weeks.



Courts have struck down such bans before. In 2013, the 9th Circuit also ruled an Arizona ban on abortions after 20 weeks of pregnancy to be unconstitutional. The Supreme Court declined to hear a challenge to that decision.

The decision Friday ruled that Idaho’s law violates Planned Parenthood v. Casey, the 1992 Supreme Court decision that affirmed much of Roe v. Wade.

The court ruled that the law breaches Casey’s standard that restrictions cannot put an “undue burden” on the ability to get an abortion before the point of viability.

“Because [Idaho’s law] places an arbitrary time limit on when women can obtain abortions, the statute is unconstitutional,” Judge Harry Pregerson wrote in an opinion for a three-judge panel. Two were appointees of Democratic presidents and one of a Republican president.

The legislation breaks new ground in the fight to protect mothers and their unborn children by acknowledging the large body of scientific evidence showing that unborn children are capable of feeling excruciating pain by at least 20 weeks after fertilization and recognizing that states have compelling interest to protect these pain-capable unborn children. Further documentation and links to the scientific studies can be found at: www.doctorsonfetalpain.com.

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.