Woman Files First Lawsuit Challenging 'Fetal Pain' Laws

By Margaret Hartmann | September 1, 2011 | 4:43am

When pro-choice activists warn that restrictive abortion laws harm women in rural areas the most, Jennie Linn McCormack is who they’re talking about. In June, McCormack was charged with having an illegal abortion after police found a fetus in a box in her home that was between five and six months gestation. McCormack says she took abortion-inducing drugs she found online because she didn’t have enough money to get a legal abortion. When she got pregnant she was unmarried and unemployed and making only $200 to $250 a month. She already has three children and couldn’t spend the time or money necessary to travel from her home in southeastern Idaho to Salt Lake City for an abortion. The charges against McCormack were dropped, but now she’s challenging the laws she allegedly violated in what’s believed to be the first lawsuit to argue “fetal pain” restrictions are unconstitutional.

In the past two years, Idaho, Kansas, Alabama, Indiana, Oklahoma, and Nebraska, have banned abortions after 20 weeks, arguing that that’s when fetuses can feel pain. (Anti-choice activists aren’t all that interested in the scientific evidence that this isn’t true.) The Associated Press reports that now McCormack is seeking class-action status in a lawsuit that challenges the idea of “fetal pain” as well as other aspects of Idaho’s abortion law. A judge dismissed the case against her without prejudice for lack of evidence, which means that the prosecutor could refile she charges — unless McCormack is successful in having the laws declared unconstitutional.

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Currently abortions in Idaho must be performed by physicians, and second-trimester abortions must take place in a hospital. If a woman causes her own abortion or goes to an unlicensed physician, she can be fined $5,000 and jailed for five years. The lawsuit says that this puts too much of a burden on women who live in rural areas of Idaho where there are no abortion providers. McCormack also argues that the ban on abortions after 20 weeks passed this year violates the Constitution because there’s no exception for abortions necessary to preserve the mother’s life, and it forbids some abortions before the fetus has reached viability. Roe v. Wade established that states can’t prohibit abortions before the age of viability, which other cases have found is between 22 and 23 weeks.

When the law was first passed, Idaho’s attorney general wrote a opinion warning lawmakers that the “fetal pain” measure might be unconstitutional, but they forged ahead anyway. If this lawsuit is successful, McCormack may be able to save herself from prosecution, and help prevent women like her from ending up in such a desperate situation.

Idaho Woman Challenges State’s New Fetal Pain Law [AP]

Earlier: Nebraska Challenges Roe V. Wade With Bogus “Fetal Pain” Law
Study: Fetuses Don’t Feel Pain Before 24 Weeks

Image via Kostia/Shutterstock.