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9th Cir. Tosses Idaho Ban on Abortions Performed After 20 Weeks

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By Casey C. Sullivan, Esq. on June 01, 2015 3:57 PM

Idaho's ban on abortions that occur after 20 weeks of pregnancy has been struck down as unconstitutional by the Ninth Circuit. That law placed an arbitrary time limit on abortions before viability, the Court found, and violated women's constitutional right to obtain an abortion before fetal viability.

The case arose after Idaho prosecuted a single mother of three for inducing her own abortion. The Ninth had recently struck down a similar law in Arizona, but several other states have enacted laws limiting abortion after the 20th week of pregnancy.

The Prosecution of Jennie McCormack

Idaho's law, the "Pain-Capable Unborn Child Protection Act," criminalizes aborting fetuses more than 20 weeks after fertilization. The medically accepted standard is that a fetus is viable after the 25th week, though some physicians have argued that a fetus can respond to pain beginning 20 weeks after fertilization.

Jennie McCormack, a mother of three, was arrested and criminally charged for violating the statute after she induced her own abortion using RU-486 in 2011. No medical abortions were available in southeastern Idaho, where McCormack lived, and she could not afford to travel to Salt Lake City, Utah, to obtain one. After her case was dismissed without prejudice, McCormack sued.

An Undue Burden

The Ninth Circuit found that Idaho's law violates Planned Parenthood v. Casey. In that 1992 case, which was largely expected to result in the overturning of Roe v. Wade, the Supreme Court ruled that the state cannot place an "undue burden" on a woman's right to get an abortion before the point of viability. A categorical ban on abortions before viability is "facially unconstitutional," according to the Ninth Circuit panel. The 20-week limit is arbitrary, since under Casey, viability must be treated as a medical concept, not a political one.

The time limit wasn't the only unconstitutional aspect of the law. The requirement that all second trimester abortions take place in a hospital placed an unconstitutional undue burden on women, the court said. Similarly, the requirement that first trimester abortions take place in a hospital, physician's office, or clinic that is "properly staffed," with "satisfactory arrangements," was unconstitutionally vague. A law that would subject women and doctors to criminal prosecution cannot rely on such subjective language. Neither term was even defined in the statute.

Not an Uncommon Law

Aside from Idaho, ten states currently have 20-week abortion bans and some members of Congress are currently pressing for a nationwide ban on abortions after the first 20 weeks. The House passed a ban on those abortions on May 13th, though it's unlikely that the bill will find much traction in the Senate. It certainly isn't expected to survive a veto from President Obama. Republicans, however, view the new 20-week line as a potentially significant issue in the GOP primaries and 2016 election, according to The Hill.

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