Idaho Woman Challenges 'Fetal Pain,' Self-Induced Abortion Laws

September 6, 2011 — An Idaho woman who terminated her own pregnancy with medication purchased over the Internet has filed a lawsuit challenging a new state law banning abortion after 20 weeks of gestation, as well as a decades-old state law prohibiting self-induced abortion, Reuters reports. The U.S. District Court in Boise will hold a hearing on the suit on Thursday.

According to the lawsuit, Jennie Linn McCormack argues that a 1972 state law discriminates against low-income women in southeastern Idaho, an area with no abortion providers, by making it a felony to end their pregnancies themselves. She also contends that a recently enacted state law that bans abortion after 20 weeks unless the woman's life is in danger -- which was not in effect when McCormack terminated her pregnancy -- poses unconstitutional barriers to abortion. Idaho is one of five states to enact laws in the past year that ban abortion after 20 weeks based on supporters' claims that a fetus can feel pain at that point; McCormack's case is the first to challenge one of the laws.

McCormack's attorney, Richard Hearn, said she obtained medication abortion pills from an online distributor on Dec. 24, 2010, when she was between 20 and 21 weeks pregnant. She ordered the pills because she lived too far from a surgical abortion provider and thought she could not afford the procedure, according to court documents (Zuckerman, Reuters, 8/31). McCormack was charged with having an unlawful abortion, but the charge was dismissed because of lack of evidence, the Washington Post's "Ezra Klein" reports.

Nancy Northup, president of the Center for Reproductive Rights, said the group has not challenged any of the "fetal pain" laws because there is no legal standing to do so, as no physicians in those states provide abortion after 20 weeks of pregnancy. "We make strategic decisions about when and how to fight for women's access," she said, adding, "So when the timing and circumstances are right, we will challenge [the bans]. In many states, it's not clear there are providers who provide abortion at that point in pregnancy. You can't challenge a law without that."

Caitlin Borgmann, a professor at the City University-New York School of Law, said the court could throw out the case. "It'll be interesting to see what the court decides about her standing," she said, adding, "It's going to very much depend on the particular judge and whether or not he wants to avoid reaching the constitutional merits of this case" (Kliff, "Ezra Klein," Washington Post, 9/2).