Idaho defends fetal-pain abortion law in court
BOISE, Idaho (AP) - A federal judge's ruling striking down Idaho's law banning abortions after 20 weeks of pregnancy should be reversed because criminal charges against the eastern Idaho woman who filed the initial lawsuit had been dismissed, Idaho attorneys said.
The Idaho attorney general's office also told a three-judge panel of the 9th U.S. Circuit Court of Appeals in Pasadena, California, on Friday that the attorney who intervened on her behalf didn't have legal standing.
Jennie Linn McCormack and Richard Hearn, an attorney and medical doctor, sued the state after she was charged with felony illegal abortion because prosecutors said she took an abortion-causing drug obtained over the Internet to terminate a pregnancy that was past the 20-week mark.
Proponents of fetal pain laws contend that they believe a fetus can feel pain at that point. Opponents say that claim isn't scientifically accurate, and that the U.S. Supreme Court has repeatedly upheld a woman's right to abortions before a fetus is old enough to live outside the womb.
Idaho was one of seven states to adopt fetal-pain laws in 2011, in Idaho called the Pain-Capable Unborn Child Protection Act.
McCormack and Hearn argued that Idaho's restrictive pre-viability abortion laws were unconstitutional and placed an undue burden on a woman's right to have an abortion. U.S. District Judge B. Lynn Winmill in Boise ruled in their favor in March 2013, striking down Idaho's law.
"Unconstitutional statutes, just like unloaded guns, can still threaten the people they're pointed at," Hearn said Friday in attempting to persuade the panel to uphold Winmill's ruling.
The state appealed the ruling in November, saying McCormick couldn't argue the law put an undue burden on women because charges against her had been dropped and the case was moot.
But Deputy Attorney General Clay Smith immediately drew sharp questions Friday, especially after it was determined the 5-year statute of limitations on the charge initially faced by McCormick hasn't expired.
"At this point, your attorney general could change his mind at any time?" Judge Kim McLane Wardlaw asked.
Judge Harry Pregerson said it appeared that Idaho prosecutors dismissed the charge against McCormick simply because they didn't have a prosecutable case.
The prosecutor "thought, well, we'll go ahead and dismiss this case, we'll moot the case, and we'll live to fight another day. Is that right?" Pregerson asked.
The state also argued that Hearn couldn't make the argument that Idaho's law placed an undue burden on women because he lacked legal standing. The panel questioned Hearn on that matter.
"If not me and my client, who has been prosecuted, who can challenge these statutes?" said Hearn, who noted that doctors in the region won't provide abortions because they could face a felony charge.
The state also contended that women seeking abortions would be harmed if Idaho's law wasn't upheld. The law has restrictions on where women can have an abortion.
"Dr. Hearn's proposed provider plan is inconsistent with and antagonistic to the wellbeing of the class of individuals whose rights he's attempting to assert," Smith said. "The notion that he can therefore challenge ... the Pain-Capable Unborn Child Protection Act is simply incorrect."
It's unclear when the panel will make a ruling.