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Appeals Court Issues Mixed Decision on Idaho 'Fetal Pain,' Self-Induced Abortion Laws

Appeals Court Issues Mixed Decision on Idaho 'Fetal Pain,' Self-Induced Abortion Laws

September 12, 2012 — An appeals court on Tuesday said an Idaho woman does not have grounds to challenge the state's "fetal pain" abortion law, but she should not be prosecuted for ending her own pregnancy under a separate law that likely is unconstitutional, The Hill's "Healthwatch" reports (Viebeck, "Healthwatch," The Hill, 9/11).

Case Background

The case centers around Jennie McCormack, who was arrested in January for ending her pregnancy at about 20 weeks by using abortion medication her sister obtained over the Internet. Mark Hiedeman, the prosecuting attorney for Bannock County, Idaho, filed felony charges against McCormack for violating a 1972 state law that says a physician must perform abortion care and that abortion in the second trimester must be performed in a hospital (Women's Health Policy Report, 6/19).

Although the charges were later dismissed, McCormack's attorney filed a lawsuit seeking to affirm that she has a right to take medication to induce an abortion and that physicians may prescribe the drugs. The suit also seeks to block Idaho's fetal pain law, which bans abortion at 20 weeks of gestation.

A federal judge previously granted McCormack a temporary injunction barring enforcement of the self-induced abortion statute, but he said she did not have standing to challenge the fetal pain law because she was no longer pregnant when it took effect (Women's Health Policy Report, 6/8).

Tuesday's Ruling

A three-judge panel of the 9th U.S. Circuit Court of Appeals affirmed the lower court's decision that McCormack should not be prosecuted for ending her own pregnancy. The panel noted that criminal abortion statutes traditionally apply to doctors and other abortion providers for cases involving unsafe abortions and not to the women themselves (Levine, Reuters, 9/11).

"There can be no doubt that requiring women to explore the intricacies of state abortion statutes to ensure that they and their provider act within the Idaho abortion statute framework, results in an 'undue burden' on a woman seeking an abortion of a nonviable fetus," the court wrote in its opinion (Bassett, Huffington Post, 9/11). Although McCormack could eventually be granted an injunction that blocks that law entirely, at this point the injunction applies only to her and not other women, the court added (Reuters, 9/11).

The panel also agreed that McCormack lacks standing to challenge the state's fetal pain law because she was never charged under it. However, McCormack's lawyer -- a physician who joined the case as a co-plaintiff -- could still challenge the law.

The appellate judges also said the fetal pain law does not hinder doctors' willingness to provide abortion care after 19 weeks of gestation. They noted that even before the statute was enacted, no providers in southeastern Idaho offered the procedure.

The case now returns to Boise's U.S. District Court (AP/Washington Post, 9/11).