March 7, 2013 — A federal judge this week ruled that a 2011 Idaho law prohibiting abortion after 20 weeks of pregnancy is unconstitutional on the grounds that it violates the principles of the Supreme Court's Roe v. Wade decision, Reuters reports. The judge's decision is the first time a 20-week abortion ban has been found unconstitutional.
The law was passed based on the disputed idea that the fetus can feel pain at 20 weeks of development. Idaho is one of at least eight states -- most recently Arkansas -- that have passed such measures (Zuckerman, Reuters, 3/7).
The case was brought by Jennie McCormack, who was arrested last year for ending her pregnancy at about 20 weeks by using abortion medication her sister obtained over the Internet. Felony charges were filed 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.
Although the charges later were 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 sought to block the state's fetal pain law (Women's Health Policy Report, 9/12/12).
Details of Decision
U.S. District Judge Lynn Winmill wrote in the decision, "[A]n outright ban on abortions at or after 20 weeks' gestation places, not just a substantial obstacle, but an absolute obstacle, in the path of women seeking such abortions" (Reuters, 3/7). The judge added that there was "compelling evidence of the legislature's 'improper purpose' in enacting" the law (Dvorak/Boone, AP/Miami Herald, 3/6).
Although Winmill previously ruled that McCormack lacked legal standing to seek a temporary restraining order against the 20-week law because she was no longer pregnant, her attorney, Richard Hearn, had standing to challenge the 20-week cutoff for legal abortions himself because he is also a physician (Reuters, 3/7).
Other Statutes Struck Down
Winmill's ruling also strikes down other state laws restricting abortion. One law requires first-trimester abortions to be performed by a physician in a health care office, thus making it illegal for a woman to take medication abortion drugs at home. Other laws require that all second-trimester abortions take place in a hospital and impose criminal penalties on some women who undergo the procedure (AP/Miami Herald, 3/6).
Winmill wrote, "[T]he question is whether the hospital-only requirement substantially burdens a woman's right to choose any type of second-trimester abortion. The Supreme Court has twice answered this question, 'yes'" (Reuters, 3/7).
Repro Health Watch — an exciting new edition of the Women’s Health Policy Report — compiles and distributes media coverage of proposed and enacted state laws and ballot initiatives affecting women's access to comprehensive reproductive health care, as well as litigation in response to those provisions.