New Twist in First Challenge to a Pain-Capable Unborn Child Protection Act

By Dave Andrusko

Jennie McCormack

We’ve written several times about Jennie McCormack, an Idaho woman who in 2010 aborted her baby using RU486 purchased on the Internet and who then filed a class action suit challenging the state’s abortion law and its (then) recently enacted Pain-Capable Unborn Child Protection Act. (See most recently, “The ‘Next Roe v. Wade’? Hardly.” ) Her child was 18-21 weeks old.

Her case is highly unusual, but has gathered a fair amount of attention as the first challenge to the Pain-Capable Unborn Child Protection Act which is now law in five states. The Abortion Establishment has murmured and grumbled and groused and threatened but has not challenged any of these laws in court. From their perspective, what’s the percentage in having a high-profile case in which there is a debate over just how much pain a pain-sensitive unborn baby endures as she is pulled apart?

The latest twist is a legal ploy by McCormack’s flamboyant attorney, Richard Hearn, who has a medical license (although he shut down his medical practice six years ago). He is “attempting to jump into the case as a plaintiff using his status as a doctor, even though he has never terminated a pregnancy, in an effort to make sure that if the case is successful, it applies broadly enough to get his client off the hook for good,” the Associated Press (AP) reports.

To understand this, you have to review the previous proceedings.

McCormack was originally charged with performing an unlawful abortion, which makes it a felony under a 1972 law for anyone other than a health care professional to perform the abortion. The judge dismissed the charges “without prejudice.”

In theory McCormack could be retried, but no one but her attorney thinks this is even remotely possible. The law has rarely been used and McCormack’s case may be the only instance. In any event pro-lifers never ask that women be prosecuted, seeing them as the second victim.

Then came passage of Idaho’s Pain-Capable Unborn Child Protection Act. McCormick sued in September challenging both the 1972 law and the Pain-Capable Unborn Child Protection Act.  The federal district judge, on a motion by the state, threw out the challenge to the Pain-Capable Unborn Child Protection Act based on the fact the law was passed after McCormick had her abortion and therefore did not have standing to challenge that part of Idaho’s law.

Hearn filed a motion to intervene in the case. “I’m intervening in order to assert Jennie’s right to obtain an abortion from a physician,” Hearn said. “And the courts have said that doctors can assert the rights of patients, especially in abortion contexts.”

This is a legal strategy that many experts say is unheard of, according to the AP. “This is like nothing that I’ve ever read about or encountered,” Bill Horton, a legal ethics expert associated with the American Health Lawyers Association and the American Bar Association’s health division, told the AP. “But these abortion rights lawsuits tend to bring out unusual strategies sometimes.”

According to various press accounts, including Newsweek, McCormack said she thought she was about 12 weeks pregnant but was, in fact, 18-21 weeks pregnant. McCormack asked her sister to buy the RU486 over the Internet and send it to her, at a cost of around $200.Even the most zealous pro-abortionist does not recommend the use of RU486 past nine weeks.)

When she saw the size of the baby, she was scaried, according to Newsweek’s Nancy Hass. “She didn’t know what to do—‘I was paralyzed,’ she says—so she put it in a box on her porch, and, terrified, called a friend. That friend then called his sister, who reported McCormack to the police.”

Hass wrote that McCormack is “a bad case” for pro-abortionists. “The fact that McCormack kept a 4-month-old fetus frozen in the winter chill on her back porch is the sort of ghoulish image pro-choice activists try to avoid,” she writes.

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