Pro-abortion 9th Circuit strikes Idaho’s Pain-Capable Unborn Child Protection Act

By Dave Andrusko

9th circuit court of appealsRight next to the sun rising in the east is the certainty that the U.S. 9th Circuit Court of Appeals will strike down any protective abortion statute.

And a three-judge panel did just that last Friday, upholding a lower court judge’s decision striking down Idaho’s Pain-Capable Unborn Child Protection Act.

The case involves Jennie Lynn McCormack who self-aborted in 2010 using unspecified abortifacient pills purchased over the Internet. The frozen body of her dead baby, found by authorities underneath McCormick’s porch, was estimated to be at least 20 weeks old.

Idaho’s law, like that of nine other states, bans performing abortions on babies 20 weeks or older because medical science demonstrates that these children will experience pain as they are destroyed.

The three-judge panel’s 28-page decision largely mirrored the decision handed down in March 2013 by Judge B. Lynn Winmill of the United States District Court for the District of Idaho.

Writing for the panel, Judge Harry Pregerson concluded the Pain-Capable Unborn Child Protection Act is “facially unconstitutional” because “it categorically bans some abortions before viability” and “places an undue burden on a woman’s ability to obtain an abortion by requiring hospitalizations for all second-trimester abortions.”

But the decision and the circumstances have to be placed in context in order to understand why it says nothing about the other nine state laws or the federal counterpart which passed the House of Representatives.

The decision “will not have an impact one way of the other” on the laws on the books in Nebraska, Kansas, Oklahoma, Alabama, Louisiana, Arkansas, North Dakota, Texas, and West Virginia, said Mary Spaulding Balch, JD, director of NRLC’s Department of State Legislation. “Pain-Capable unborn babies still cannot be killed in those states.”

Balch added, given the court, “The outcome was utterly predictable.”

The case is mind-numbingly complex and convoluted.

McCormack was charged in May 2011 under an Idaho law that made it illegal for anyone other than a health care professional to be involved with ending a pregnancy. Richard Hearn, a physician-attorney, defended McCormack, the case was dismissed, and the state attorney general said repeatedly he had 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. 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. (At the time of the oral arguments, Hearn had not practiced medicine in 16 years.)

That presumably means “into” the second trimester, although how far in neither Hearn nor Winmill give an indication they care about. Generally speaking, abortionists will not use chemical abortifacients past the 12th week both because they are not as “effective” and because of an increased danger to the mother.

Judge Winmill concluded the state law was unconstitutional but went on to hold that McCormack and her attorney did have standing to challenge the Pain-Capable Unborn Child Protection Act.

The state appealed the ruling in November 2013.

Balch noted that the state attorney general brought up the issue of the unborn child’s capacity for pain only tangentially. Instead he focused on the argument that McCormack did not have standing: her abortion was in 2010 but the law was not enacted until 2011.

Likewise, the attorney general argued that Hearn lacked standing because he did not perform abortions. Hearn is not trained in obstetrics and gynecology. His practice was in nephrology [kidney diseases] and rheumatology [arthritis and other musculoskeletal diseases].

As noted above, the appeals court panel brushed those considerations aside.

Balch said it is not unusual for lower courts to apply precedent.

“But when this case makes it way to the Supreme Court, we feel confident there is a majority that will conclude this law was a legitimate action by the state of Idaho.”

Balch also noted how much of an “outlier” the case is. “The major pro-abortion legal arms were conspicuous by their absence,” she told NRL News Today. “We would be surprised if our opponents would want this case before the High Court.”

Balch talked about what NRL News Today has reported on previously: the shock and dismay of police. “They saw this huge baby and felt a crime had been committed,” she said. The baby “was at least 20 weeks–and unmistakably looked like a baby.”

As for McCormack, “Who in their right mind would buy powerful chemicals off of the Internet and ingest them?” Balch asked. Even the most vocal advocates of chemical abortion would never suggest she use abortifacients much past the 12th week on her own, let alone the 20th.