Fetal Pain Law: Idaho 20-Week Abortion Ban Struck Down

Idaho is no longer one of the ten states with a 20-week abortion ban. On Thursday, its own "fetal pain law" was struck down by federal courts.

U.S. District Judge B. Lynn Winmill stated that this ban violates women's constitutional rights by placing an "undue burden" on those seeking abortions. His decision also addressed the state's foremost interest in the "potential life of the fetus" before considering the lives of pregnant women themselves.

An Idaho mother named Jennie Linn McCormack initially brought the case to court as a result of her own harrowing story. McCormack, desperate for an abortion but unable to afford one, resorted to purchasing self-abortion pills online. Soon after, she was arrested and charged for her "unlawful abortion," facing five years in prison.

McCormack's own case made it to the Ninth Circuit Court of Appeals, where Judge Harry Pregerson's decision stated that "prosecuting women for terminating pregnancies won’t end abortion, it will just create a whole new class of criminals."

Her case was dismissed, and on Thursday led Judge Winmill to strike down Idaho's self-abortion statutes along with the 20-week ban.

The 20-week ban on abortions has also been enacted in Alabama, Arizona, Georgia, Idaho, Indiana, Kansas, Louisiana, Nebraska, and Oklahoma. Only two states offer any sort of exception for a so-called "medically futile pregnancy," while the rest offer no exceptions at all.

Elizabeth Nash, states issues manager at Guttmacher Institute, a New York-based reproductive-health research group, said that 20-week bans violate the terms of Roe v. Wade. The law states that a fetus can be aborted until it can survive outside the womb, usually between 24-26 weeks.

In addition to challenging women's constitutional rights, the ban also faced opposition from prominent medical experts. Through their lawyers, doctors involved in the case put out a comprehensive list of reasons why women need to abort past 20 weeks, which include but are not limited to malformation or absence of the brain or kidneys, severe heart defects, or excess fluid that leads to serious brain damage.

These conditions are often not detectable until the 18th week of pregnancy, and even still, pregnant women may not realize there is a problem with the fetus until their next doctor's appointment well after this time.

Pregnant women also face health issues that could threaten their pregnancies and result in an abortion being necessary to save her life. In most cases, the fetus is viable and can be safely delivered. But conditions such as diabetes, epilepsy, lupus, or problems in past pregnancies can negatively affect pregnancy. While the woman may want the child initially, pregnancy could exacerbate her condition and force her to choose between her life and that of her unborn child, often at or around 20 weeks.

The court held that there is no justification that the 20-week ban is designed to assist a woman in deciding whether to terminate a pregnancy, as the health of the mother was never considered in enacting the ban. Now, there appears to be a greater concern.

Cecile Richards, president of Planned Parenthood for America, called the overturning of the ban a "victory for women."

"This ruling is a warning to other states around the country that are passing bans on abortion that are unconstitutional and dangerous for women," she added.

Judge Winmill agreed. "Because it appears the [law] was enacted with the specific purpose of placing an insurmountable obstacle in the path of women seeking an abortion after 20 weeks," he wrote, "but before the fetus has attained viability, the section imposing the categorical ban is unconstitutional."

This decision could bode well for similar decisions in states like Arizona, where a lawsuit against their 20-week ban is pending before the Ninth Circuit Court of Appeals.

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Christine Salek

Christine is a writer and perpetual student living in Des Moines, Iowa. Her writing can also be found on Medium, the Gonzaga Bulletin, and ResearchGate.

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