Idaho Lawyer Hopes To Become Plaintiff in Lawsuit Challenging 'Fetal Pain,' Self-Induced Abortion Laws

April 18, 2012 — An Idaho lawyer who is representing a woman challenging state antiabortion laws is attempting to enter the case as a plaintiff, the AP/Yahoo! News reports (Boone, AP/Yahoo News!, 4/17). The suit seeks to block Idaho's so-called "fetal pain" law, which bans abortion after 20 weeks of gestation, as well as an older law prohibiting self-induced abortion (Women's Health Policy Report, 9/26/11).

Because attorney Richard Hearn also is a physician, he hopes joining the case will ensure that a favorable ruling would apply broadly enough to overturn the law.

Hearn represents Jennie Linn McCormack, an Idaho woman who terminated her own pregnancy in December 2010 -- prior to the law taking effect -- using medication purchased over the Internet. McCormack was charged with the felony of performing an unlawful abortion, under a state law that bans anyone other than a health care professional from inducing an abortion. The charges later were dropped "without prejudice," meaning that the state could still file charges again.

Hearn filed a lawsuit seeking to affirm that McCormack has a right to take medication to induce an abortion and that physicians may prescribe the drugs. The suit also challenged the fetal pain law on the basis that McCormack ended her pregnancy after the 19 week limit (AP/Yahoo News!, 4/17). Although U.S. District Judge Lynn Winmill granted McCormack a temporary court order barring enforcement of the self-induced abortion statute, he said she lacked the legal standing to challenge the fetal pain law because she was unable to prove imminent harm, as she was no longer pregnant when it took effect (Women's Health Policy Report, 9/26/11).

Hearn said that for McCormack to have legal standing to fight all aspects of the fetal pain law, "she would have to be pregnant, want to get an abortion and for some reason have to wait until after the 19 weeks." Hearn -- who specialized in arthritis and kidney disease but no longer practices medicine -- said he is "intervening in order to assert Jennie's right to obtain an abortion from a physician." Hearn noted that the "courts have said that doctors can assert the rights of patients, especially in abortion contexts."

Deputy Idaho Attorney General Clay Smith said Hearn was attempting to introduce issues that McCormack does not have standing to present, which Hearn did not dispute. "I'm not trying to trick anybody or anything," he said (AP/Yahoo News!, 4/17).