By Dave Andrusko
Late Wednesday U.S. District Judge B. Lynn Winmill struck down Idaho’s Pain-Capable Unborn Child Protection Act (among other protective laws) as part of a 42-page decision that ran hither and yon to uphold a challenge by Jennie Linn McCormack. Although eight states have passed similar laws, this is the first time a Pain-Capable Unborn Child Protection Act has been challenged in federal court.
As NRLC pointed out in a statement issued earlier today, Judge Winmill’s decision opens the door to consideration ultimately by the United States Supreme Court. In the near term, the next step would be an appeal to the Ninth Circuit Court of Appeals (whose reasoning Winmill hewed to closely with one huge exception), followed, after its decision, by a request to the U.S. Supreme Court to hear the case.
The McCormack case has a long and complicated history. McCormack, the mother of three, aborted in late 2010, using some unspecified abortifacient purchased by her sister over the Internet. As Judge Winmill noted in his decision, at various times McCormack estimated her baby’s age from 4 weeks to 25 weeks. (The most likely age was between 18 and 21 weeks.)
When she saw the size of the baby, McCormack was scared, according to a story in Newsweek written by 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.”
McCormack was charged in May 2011 under an Idaho law that makes it illegal for anyone other than a health care professional to be involved with ending a pregnancy. Attorney Richard Hearn defended McCormack, the case was dismissed, and the state attorney general has since said repeatedly he has no intention of retrying McCormack—that the case was “moot.”
But McCormack challenged the law in federal court, as she did the Pain-Capable Unborn Child Protection Act which was not in existence when she aborted.
Last September, a three-judge panel of the 9th U.S. Court of Appeals held that the part of Idaho’s abortion law that McCormack was charged under may be unconstitutional but also ruled that the plaintiff did not have standing to challenge the state’s Pain-Capable Unborn Child Protection Act.
Judge Winmill concluded the state law was unconstitutional but went on to hold that McCormack and her attorney (a non-practicing physician) did have standing to challenge the Pain-Capable Unborn Child Protection Act.
The reasoning runs from straightforward to semi-plausible to tortuous.
Under the straightforward category, Judge Winmill said flatly that the Pain-Capable Unborn Child Protection Act is inconsistent with Supreme Court jurisprudence. (We’ll show why that isn’t true below.)
Why does attorney/physician Hearn have legal “standing”? Not because he’s practiced in 16 years; he hasn’t. Not because he’s trained in obstetrics and gynecology; his practice was in nephrology [kidney diseases] and rheumatology [arthritis and other musculoskeletal diseases].
Not because he feels the need to have a “properly equipped and staffed” office or clinic [or even an office!], or feels the need to make “satisfactory arrangements for emergency care with a reasonable proximity of that office or clinic for a first trimester abortion, or outside a hospital setting for a second trimester abortion.”
As I read Winmill, that’s moot anyway: these are unconstitutionally vague terms and therefore unenforceable.
And certainly not because Hearn takes a conservative—make that mainstream—position on the use of chemical abortifacients (also dubbed “medical” abortions). Some of the militants use them a week or two past the nine weeks marker, but Hearn (according to Winmill) said he “would perform medical abortions outside a clinical or hospital setting through the second trimester” if the Idaho’s law were struck down. That presumably means “into” the second trimester, although how far in neither Hearn nor Winmill give an indication they care about.
Hearn has standing because at one point in time he tacked a medical license on his wall. So much for worrying about the safety of women.
Why does McCormack have standing to challenge the law? Well, because she says she’s through having kids and if she becomes pregnant again, she will abort. And then in one very odd passage (to emphasis how “capable of repetition” McCormack’s claims are), Winmill writes that were McCormack to become pregnant again, her full-term pregnancy, like all full-term pregnancies, “lasts only 266 days.”
As for Judge Winmill’s conclusion that the Pain-Capable Unborn Child Protection Act is unconstitutional, two things can be said.
One, if this case, or another state’s Pain-Capable Unborn Child Protection Act, reaches the Supreme Court, it would be, as the lawyers like to say, a case of “first impression.” The High Court has never addressed the issue of fetal pain. What we knew about the unborn in 1973 compared to what we know now is like the difference between simple arithmetic and differential calculus.
Second, the High Court has long talked about the state’s “compelling interest” in what it calls the “potential” life of the unborn. The Pain-Capable Unborn Child Protection Act affords the justices the opportunity to ask themselves this question:
Given what we know about the capacity of the unborn child to experience pain, does not the state’s compelling interest extend to a child whose death is horrible beyond our capacity to comprehend?