Metropolitan News-Enterprise


Monday, June 1, 2015


Page 3


Ninth Circuit Panel Strikes Down Some Idaho Abortion Laws


By a MetNews Staff Writer


Sections of Idaho’s Pain-Capable Unborn Child Protection Act that restrict abortions after 20 weeks and require all second-trimester abortions to take place in a hospital are unconstitutional, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The panel affirmed an injunction granted two years ago by U.S. District Judge B. Lynn Winmill in a suit brought by eastern Idaho resident Jennie McCormack and attorney Richard Hearn, who is also a physician.

The statute they challenged was enacted after McCormack was charged with violating a 1972 law prohibiting self-induced abortions. The Bannock County resident, a single mother of three, ended a pregnancy in 2010 by obtaining the abortion-inducing drug RU-486 online and using it without a doctor’s supervision, although she was well past the point in her pregnancy at which the drug is considered safe.

The criminal charge was later dropped. But McCormack challenged the new law, and Hearn intervened on behalf of himself and his future patients.

Judge Harry Pregerson, writing for the Ninth Circuit, rejected the county prosecutor’s arguments that the plaintiff’s claims were moot and that Hearn lacked standing.

The prosecutor, Pregerson noted, has never accepted the plaintiff’s contention that the statute is unconstitutional, so the plaintiff has the right to seek declaratory relief. He also noted that McCormack could become pregnant again and thus face prosecution again in the event her challenge to the law is not heard.

Hearn’s situation, he added, does not substantially defer from that of other physicians who have been allowed to challenge anti-abortion laws.

On the merits, Pregerson said the ban on abortions after 20 weeks was unconstitutional because it restricted abortions of a non-viable fetus, which the Supreme Court has held to be a violation of the Fourteenth Amendment. “Although the state may ensure that the woman’s choice is informed, and protect the health and safety of a woman seeking an abortion, the state may not prohibit a woman from making the ‘ultimate decision’ to undergo an abortion,” he wrote.

The judge went on to say that the hospitalization requirement was unconstitutional because it places an undue burden on a woman’s ability to obtain abortions. Similar requirements in other states have been struck down by the Supreme Court, he noted, rejecting the prosecutor’s argument that Idaho’s situation is distinguishable based on the small number of second trimester abortions performed there.

The panel, which also included Judge Kim M. Wardlaw and visiting Senior District Judge Donald E. Walter of the Western District of Louisiana, also struck down as unconstitutionally vague the law’s requirements that abortions during the first trimester take place in a medical office that is “properly staffed” and that the responsible physician make “satisfactory” arrangements with an acute care hospital in case of complications or emergencies.

The case is McCormack v. Herzog, 13-35401.


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