Fetal Pain Law: Federal Judge Vetoes Idaho Abortion Law


A federal judge has struck down an Idaho law banning abortions after 20 weeks of pregnancy, citing that “the state may not rely on its interest in the political life of the fetus to place a substantial obstacle to abortion before viability in women’s paths.”

The ruling also found at least two other Idaho laws on abortion unconstitutional. One law is the requirement that first-trimester abortions must be performed by a physician in an office or clinic. The decision also sought to overturn the statute that criminalizes women for undergoing a second trimester abortions. The judge declared both rulings, based on fetal pain laws, unconstitutional.

The case came about when Jennie Linn McCormack bought abortion-inducing drugs online and performed a self-induced abortion at home. After she abandoned her 5-6 month old fetus in a box that was later found by investigators, she was criminally prosecuted and charged with having an illegal abortion by Bannock County’s prosecuting attorney Mark Hiderman. In her lawsuit, McCormack challenged the lack of access to abortion clinics for women in her area as well as the ban on abortions after 20 weeks.   

In her ruling, Judge B. Lynn Winmill not only sided with McCormack but also chastised the legislature, largely dominated by republicans, for their motives behind adopting the fetal pain law to begin with. The judge said that they were putting the needs of a fetus ahead of the life of the mother.

This has far reaching implications in at least 8 other states including Arizona, Nebraska, Alabama, Indiana, Kansas, Oklahoma, Georgia, and Louisiana, which all adopted fetal pain laws following Nebraska’s approval of the law in 2010. Since then, abortion laws have become even more restrictive. In Arkansas this week, lawmakers struck down a veto of a ban of abortions after the 12th week of pregnancy.

The fetal-pain bills do not directly challenge the Supreme Court’s judgment. However, they do take advantage of loopholes in the law and those loopholes can be interpreted by federal judges who are opposed to abortion to find them unconstitutional. Currently the Supreme Court’s position is that the Constitution permits states to prohibit abortion “in order to preserve fetal life after the fetus is capable of surviving outside the womb,” as the Washington Post cited in a recent article. Therefore it is left up to the states to determine whether fetal pain actually exists as a medical condition and whether it is a viable excuse for prohibiting abortions after 20 weeks.

While the Supreme Court’s decision is being upheld, leaving abortion decisions up to states, the Idaho decision has major implications for the interpretation of the law by federal judges.

As Judge Winmill cited, the historic context is important to examine. She noted that, “Historically, abortion statues sought to protect pregnant females from third parties providing dangerous abortions. As a result, most states’ abortion laws traditionally criminalized the behavior of third parties to protect the health of pregnant women- they did not punish women for obtaining an abortion.”

It now seems that this reversal in punishing women rather than third party abortion providers will be decided by federal judges, who will have to interpret for themselves the spirit of the law in subsequent rulings. As Federal Judge Winmill struck down Idaho’s laws surrounding fetal pain and abortion, other states will be called upon to judge for themselves the constitutionality of the law rising above political motivations and self-interest.