Judge Rules Woman Lacks Standing to Challenge Idaho Pain-Capable Unborn Child Protection Act

By Dave Andrusko

U.S. District Judge B. Lynn Winmill

On Friday U.S. District Judge B. Lynn Winmill ruled that Jennie Linn McCormack does not have legal standing to challenge Idaho’s new Pain-Capable Unborn Child Protection Act. However Winmill did give McCormack a temporary restraining order against a pre-Roe v. Wade Idaho law that made it a felony for a woman to end her own pregnancy.

As we discussed last month, McCormack’s lawsuit appears to be the first against a Pain-Capable Unborn Child Protection Act which protects from abortion any child capable of feeling pain. Four states passed the measure this year, joining Nebraska which enacted the first measure in 2010.

“We are delighted that Idaho’s new law remains in force,” said Mary Spaulding Balch, JD, who directs National Right to Life’s Department of State Legislation. “The judge properly ruled that since McCormack is no longer pregnant, she has no standing to challenge the 2011 law.”

Her attorney, Richard Hearn, said he will continue to press the fight in court “but I don’t see how he can prevail,” Balch told NRL News Today.

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,” according to Reuters. Although this was never brought up in news accounts, even the most zealous proponents of RU486 does not prescribe its use past nine weeks.

McCormack wrote in a sworn statement, “I learned that medication for inducing abortions had been approved for use in the United States and could be purchased over the Internet.” Hearn insisted his client thought she was getting the two-drug abortion technique from a legitimate medical provider.

The suit stemmed from charges brought against Winmill in August (and later dismissed for lack of evidence) under a 1972 Idaho law that made it illegal for a woman to end her own pregnancy.

“Because that criminal case could technically be refiled against her, Winmill ruled that McCormack did have standing to seek a court order against further enforcement of the measure,” according to Reuters. “He also ruled that McCormack was likely to succeed on the merits of her claim that the 40-year-old statute poses an unconstitutional barrier to her rights to seek an abortion.”

Hearn alleged that the Pain-Capable Unborn Child Protection Act is unconstitutional because it does not provide a “constitutionally acceptable exemption” to preserve the mother’s health

Balch, whose department developed model Pain-Capable Unborn Child Protection Act legislation, pointed out that this contention has been 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.)

“If this legislation reaches the High Court, 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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