Will Pro-Abortionists Use Idaho Lawsuit to Challenge Pain-Capable Unborn Child Protection Act?

By Dave Andrusko

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

Take these back-to-back developments and what questions are we left asking? On Wednesday Jennie Linn McCormack, an Idaho woman who aborted her 20-21 week old baby using RU486 purchased over the Net, challenges the state’s newly enacted Pain-Capable Unborn Child Protection Act.

On Thursday Alabama’s Pain-Capable Unborn Child Protection Act officially took effect.

One question: does passage of the first Pain-Capable Unborn Child Protection Act make any difference? “When the first law on this passed in Nebraska, the impact was almost immediate: The abortionist who performed abortions on pain-capable children stopped doing them,” Mary Spaulding Balch, NRLC director of State Legislation told the Washington Times. “I think it will have a similar impact in the state of Alabama.”

Second question, is the case filed in the U.S. District Court for Idaho this week finally be the time when pro-abortionists actually attempt to challenge the Pain-Capable Unborn Child Protection Act? They’ve been broadly hinting such a move is in the cards since the day Nebraska passed the law.

The headline in the Washington Post today—“Idaho abortion lawsuit may be headed to Supreme Court”—would you lead you to answer the latter question in the affirmative. But a closer reading leads in the opposite direction.

For example, as we pointed out Wednesday, this wasn’t the usual pro-abortion strategy where outside muscle—typically the New York-based Center for Reproductive Rights (CRR)—comes charging in. This was one woman and her attorney, Richard Hearn.

And CRR President Nancy Northrup offers a new (at least unfamiliar to me) explanation why they haven’t jumped in: standing. According to the Post’s Sarah Kliff, “No physicians who provide late-term abortions practice in the states where it is banned.” Or, to quote Northrup directly, “In many states, it’s not clear there are providers who provide abortion at that point in pregnancy. You can’t challenge a law without that.”

[She follows this up with her boilerplate justification: “We make strategic decisions about when and how to fight for women’s access,” Northup said. “So, when the timing and circumstances are right, we will challenge these.”]

Well, in case Northrup has forgotten, a major impetus for Nebraska passing the ban in the first place was abortionist LeRoy Carhart who makes no bones about aborting children late in pregnancy. And are we to believe there are really no abortionists in the other four states with Pain-Capable Unborn Child Protection Act who perform abortions at 20 weeks post-fertilization or later?

No, a much better explanation for CRR’s reluctance is they haven’t found the “perfect” case, the one in a gazillion where they think the stars are aligned perfectly. That is not Ms. McCormack.

“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 Idaho 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 her lawsuit 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.” (Seewww.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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