Idaho Woman Challenges Unborn Child Pain Protection Act

By Dave Andrusko

NRLC State Legislative Director Mary Spaulding Balch, J.D.

An Idaho woman who aborted using RU486 purchased on the Internet, has filed a class action suit in the U.S. District Court for Idaho challenging the state’s abortion law and its recently enacted Pain-Capable Unborn Child Protection Act. As best anyone can tell, this is first court challenge to the laws passed first in Nebraska in 2010 and four other states in 2011 which protects from abortion those unborn children capable of feeling pain, conservatively defined in the law as 20 weeks post-fertilization. (See here.)

The story is both complicated and puzzling on a number of fronts.

According to Reuters Jennie Linn McCormack, now 33, was the mother of three and 20-21 weeks pregnant in the fall of 2010 when she “ordered pills online she believed were prescribed by a distant healthcare provider to induce an abortion.” Even the most fervent proponents of RU486 do not prescribe its use past nine weeks.

“I learned that medication for inducing abortions had been approved for use in the United States and could be purchased over the Internet,” McCormack wrote in a sworn statement. Reuters reports that she said she could “ill afford” a surgical abortion.

Idaho’s Pain-Capable Unborn Child Protection Act, which became law in April, was not in effect when McCormick aborted.

But her attorney, Richard Hearn, alleged in the lawsuit that Idaho’s 1972 abortion law discriminates against women in southeastern Idaho, “which lacks any abortion providers, by forcing them to seek more costly surgical abortions far from home,” Reuters reports.

He also alleges that both the 1972 law and the Pain-Capable Unborn Child Protection Act are unconstitutional because they do not provide a “constitutionally acceptable exemption” to preserve the mother’s health

Mary Spaulding Balch, JD, is the director of NRLC’s Department of State Legislation, which developed model Pain-Capable Unborn Child Protection Act legislation. She has closely followed the law’s mounting success and veiled threats from the Abortion Industry to challenge these laws.

Balch explained that the lawsuit, filed last Wednesday, stemmed from a charge brought last summer against McCormack for violating a provision of the 1972 making it a felony to self-abort, which a judge later dismissed for lack of evidence.

“I suspect her case is not what pro-abortion attorneys had in mind when they threatened to challenge one or the other of Unborn Child Pain Protection laws passed in the last year,” she said. Balch went on to explain why.

“Pro-abortionists are looking for a ‘hard case’ to challenge these laws, which typically means a baby they say is ‘born dying,’” Balch said. “This woman did not wish to be pregnant and took an abortifacient that even pro-abortion organizations do not recommend for a baby this advanced.”

The complaint in the case claims that the law fails to contain a “constitutionally acceptable exception” allowing for an abortion if necessary to preserve the health of the mother. That contention is rebutted by Dr. Sean Patrick Kenney, M.D., a board certified obstetrician/gynecologist, and assistant clinical professor at Creighton University School of Medicine in Omaha, Nebraska.

“The language of the law makes fully adequate provision for those rare cases, probably occurring no more than 1-2 times per 5,000 births, when medical complications require premature delivery or abortion of an unborn child after the stage at which the child is capable of feeling pain,” noted Dr. Kenney.

“Most people would oppose the killing of unborn children who are capable of feeling pain,” Balch said. “A significant number of scientific studies have proven that unborn babies feel pain.” (See www.doctorsonfetalpain.com.)

“We are confident that the Supreme Court will ultimately recognize the right of the state to protect these children from the excruciatingly painful death of abortion,” Balch concluded.

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