Judge Winmill strikes down multiple Idaho pro-life laws

Preborn child at 20 weeks gestation, or 22 weeks LMP - a new standard of viability, where the child can live outside the womb.

“[D]etermination to define viability in a manner specifically and repeatedly condemned by the Supreme Court.”

20-weeks-human-fetusA federal judge has dealt a heavy blow to pro-life movements in Idaho this week, striking down multiple laws aimed at tightening regulations on abortion. U.S. District Judge B. Lynn Winmill issued a 42-page ruling this Wednesday siding with plaintiff Jennie Linn McCormack, who challenged Idaho’s statutes herself after charges were brought against her for obtaining an illegal abortion.

In January of 2011,  police discovered a bag containing a dead baby which was determined to be somewhere between five and six months’ gestation, beyond Idaho’s 20-week restriction. While the criminal charges were ultimately dismissed without prejudice due to lack of evidence, investigators reported that McCormack had told them her sister helped her obtain “abortion drugs” because she lacked the time and money needed to travel out of state to obtain an abortion. McCormack ultimately challenged three of Idaho’s laws relating to abortion, claiming they unconstitutionally restricted a woman’s access to reproductive choice.

The first law which was struck down was Idaho’s fetal pain law – a measure aimed at prohibiting abortions based on the pain felt by the unborn infant. Despite the fact that numerous medical experts have testified that a fetus is capable of feeling pain even more intensely than older children and adults, the judge lambasted the Idaho legislature for having improper motives in passing the law, stating that there was “compelling evidence of the legislature’s ‘improper purpose’ in enacting it” and that the legislature may never “rely on its interest in the potential life of the fetus to place a substantial obstacle to abortion before viability in women’s paths.” Ultimately, Winmill ruled that any legislation which prohibits an abortion before the accepted age of viability (currently around 24 weeks) is an unconstitutional infringement on the rights established in Roe v. Wade.  The ruling found “clear disregard” for the precedent set in Roe and a “determination to define viability in a manner specifically and repeatedly condemned by the Supreme Court.”

The ruling also struck down Idaho’s requirement that all first-trimester abortions be performed by a physician in a clinic or office which is staffed properly, a law which, in practice, made most drug-induced abortions illegal, since medications like RU-486 are usually taken while the mother is at home.

Finally, Winmill overturned a statute which requires that second-trimester procedures take place in a hospital, and attacked another statute which allowed for criminal charges to be brought against women who obtain abortions under certain circumstances. Judge Winmill was nominated by then-President Bill Clinton in 1995.

Not surprisingly, the ACLU is heralding the ruling as a victory for women, and it ought to cause great concern for pro-life advocates, as nearly a dozen other states have enacted, or are working to enact, fetal pain legislation, as well as restrictions on abortion which are strikingly similar to some of the provisions targeted by the recent decision.

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