News Law and Policy

Ninth Circuit Court Strikes Another 20-Week Abortion Ban

Jessica Mason Pieklo

A federal appeals court on Friday ruled unconstitutional an Idaho law banning abortions at 20 weeks post-fertilization, marking the latest legal defeat for radical state-level abortion bans.

A federal appeals court on Friday ruled unconstitutional an Idaho law banning abortions at 20 weeks post-fertilization, marking the latest legal defeat for radical state-level abortion bans.

The decision came in the case of Jennie Linn McCormack, a single mother of three who was charged in 2011 under the state’s “unlawful abortion” statute, a law that required all second-trimester abortions occur in a licensed hospital and brought criminal penalties for anyone who failed to abide.

McCormack was charged with illegally ordering and ingesting abortion-inducing medication in violation of the statute. McCormack challenged the constitutionality of the state’s unlawful abortion statute and its so-called fetal pain ban, a law that bans abortions at 20 weeks post-fertilization, arguing both were unconstitutional.

The Ninth Circuit Court of Appeals in September 2012 ruled Idaho’s unlawful abortion statute unconstitutional in a blistering opinion that made it clear states could not use criminal abortion laws to prosecute women who self-terminate pregnancies.

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The Ninth Circuit also declared Idaho’s 20-week ban unconstitutional in that September 2012 decision, but held that because Idaho’s 20-week ban had not been in effect when McCormack terminated her pregnancy and faced criminal prosecution, she did not have standing at that time to challenge the 20-week ban.

Dr. Richard Hearn, an abortion provider and McCormack’s attorney, intervened to challenge Idaho’s 20-week ban on behalf of himself and future patients. That gave the court the opportunity to affirm its September 2012 ruling that Idaho’s 20-week ban is unconstitutional because it bans abortions prior to fetal viability.

“Because [the law] places an arbitrary time limit on when women can obtain abortions, the statute is unconstitutional,” wrote the court. “We also recently held unconstitutional an Arizona law banning abortions after the twenty week gestational age because the law operated as a ban on a woman’s constitutional right … to pre-viability abortion.”

The decision comes at an important time politically for abortion rights. Republicans in Congress are trying to pass a bill that would ban abortions after 20 weeks nationwide. Despite federal court rulings that pre-viability bans like Idaho’s are unequivocally unconstitutional, 12 GOP-led state legislatures this year have introduced 19 laws banning abortion at or after 20 weeks.

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