Idaho’s Abortion Ban Struck Down

     PASADENA, Calif. (CN) – An Idaho law criminalizing second-trimester abortions is unconstitutional and a woman prosecuted under the law had legal standing to challenge it, the 9th Circuit ruled Friday.
     Idaho’s Pain-Capable Unborn Child Protection Act is “facially unconstitutional,” a 9th Circuit panel said in a 28-page ruling, because “it categorically bans some abortions before viability” and “places an undue burden on a woman’s ability to obtain an abortion by requiring hospitalizations for all second-trimester abortions.”
     The panel found that Jennie McCormack and her attorney-physician Richard Hearn still faced the “lingering risk” of prosecution under a law which banned abortions after 20 weeks of pregnancy.
     Therefore they could challenge the constitutionality of the law, the panel said.
     A federal judge in the state ruled in favor of McCormack after she filed a federal class action against Bannock County’s prosecutor alleging that authorities had criminally charged her for having an abortion in her second trimester.
     McCormack was a single mother of three children and living on about $250 a month when she became pregnant. With no abortion clinics in the eight southeastern Idaho counties – and the nearest abortion clinic close to 140 miles away in Salt Lake City, Utah – McCormack took five abortion pills to terminate the pregnancy.
     In 2011, Bannock County prosecutor Mark Hiedeman charged McCormack with a felony charge of unlawful abortion after authorities discovered she was keeping the fetus in a box on her back porch, according to court records.
     A state court dismissed the criminal complaint the same year.
     Two statutes under Chapter 6 of the Idaho Code place abortion restrictions on pregnant women during the first and second trimester. A third – Idaho’s Pain-Capable Unborn Child Protection Act – effectively bans abortions after 20 weeks of pregnancy.
     Under the regulations, a woman convicted of an “unlawful abortion” faces a $5,000 fine or up to 5 years in state prison.
     Idaho physicians also faced potential criminal charges for prescribing FDA-approved abortion medications to women through the second trimester of pregnancy.
     In March 2013, Chief U.S. District Judge Lynn Winmill found that the regulations are unconstitutional.
     The 9th Circuit unanimously affirmed that decision on Friday, ruling that just because prosecutors had granted McCormack immunity from her criminal case did not mean they would not prosecute her again in the future.
     As for the law itself, the court found that it violates a woman’s right under the Fourteenth Amendment because it bans some abortions before the fetus is viable.
     “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,” Circuit Judge Harry Pregerson wrote for the panel.
     The Jimmy Carter appointee wrote that portions of the law requiring women in their first trimester to go to “properly staffed” facilities that are close to hospitals that can provide care for acute injury or illness were unconstitutionally vague.
     “The appropriate amount of staff and equipment for an abortion remains unclear, as there may be differing opinions about what is sufficient,” Pregerson wrote. “It also is unclear what types of arrangements must be made with acute-care hospitals to comply with the statute.”
     There are similar abortion laws in effect in Nebraska, Kansas, Oklahoma, Alabama, Georgia, Louisiana, Arkansas, North Dakota, Texas and West Virginia.
     Georgia’s abortion law is enjoined because of pending litigation, according to National Right to Life Committee.
     Circuit Judge Kim Wardlaw and Louisiana U.S. District Judge Donald Walter joined Pregerson’s opinion.

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