News Law and Policy

Federal Appeals Court Considers Idaho’s 20-Week Abortion Ban

Jessica Mason Pieklo

A panel of judges is considering overturning a lower court's ruling that the state's 20-week abortion ban is unconstitutional.

On Friday, the Idaho attorney general’s office urged a federal appeals court to reverse a ruling that Idaho’s 20-week abortion ban and other abortion restrictions are unconstitutional, arguing that the challengers didn’t have standing to pursue their claims.

A three-judge panel of the Ninth U.S. Circuit Court of Appeals heard arguments in the case of Jennie Linn McCormack, an Idaho woman who was charged in 2011 with a felony for illegally inducing her own abortion under the state’s “self-abortion” statute, which makes it a crime for anyone other than a doctor to perform an abortion. McCormack was charged after police received a third-party tip that McCormack had a discarded fetus at her house. When questioned by police, McCormack admitted she had obtained abortion-inducing drugs online and took them herself because she couldn’t afford to travel to a doctor for an abortion, nor could she afford to care for another child.

A judge dismissed the criminal charge against McCormack for a lack of evidence, but the court left open the possibility that prosecutors could re-file charges against McCormack should they find more evidence. In response, McCormack filed a civil lawsuit challenging the constitutionality of the state’s “unlawful abortion” law, under which individuals can face a $5,000 fine or up to five years in state prison, including any doctors who prescribe Food and Drug Administration-approved abortion medications to women through the second trimester of pregnancy, and the state’s “Pain-Capable Unborn Child Protection Act,” which effectively bans abortions after 20 weeks of pregnancy.

In March 2013, U.S. District Judge B. Lynn Winmill declared the laws unconstitutional in a lengthy decision that called the regulations “simply too much.” Attorneys for the state appealed, arguing that because McCormack no longer faced prosecution, her constitutional challenges should be dismissed as moot.

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This is not the first time the Ninth Circuit has considered the constitutionality of a 20-week abortion ban. Last May, the federal appeals court unanimously blocked a similar Arizona law. In January, the U.S. Supreme Court declined to review that decision, leaving in place the Ninth Circuit’s ruling blocking the Arizona law.

The Ninth Circuit is not expected to rule on the Idaho challenge for several months.

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