Abortion Lawsuit: Fetal Pain Law Contested

A woman in Idaho, Jennie McCormack, has become the first person to file a lawsuit that challenges the constitutionality of the “fetal pain” abortion ban.

Idaho and six other states have implemented bans on abortion after 20 weeks of pregnancy citing that the fetus can feel pain. McCormack says this is unconstitutional.

The woman was charged with a felony in June for illegally aborting her fetus last December, according to police reports, by taking pills meant to terminate the pregnancy.

The fetus was found by police in a box at McCormak’s home. According to reports, an autopsy revealed that the fetus had been between 5 and 6 months old.

McCormack claims that she was unmarried, unemployed, and already had 3 children to support. The lawsuit indicates that she could not afford to travel to Salt Lake City to get a legal abortion.

The case was dismissed for lack of evidence.

McCormack is challenging the law on constitutional grounds, she says, because it doesn't contain an exception clause allowing for abortions if necessary to preserve the mother's health, and because it prohibits some abortions even before a fetus has reached viability.

Roe v. Wade made it illegal for states to prohibit abortions done before the age of viability. Medical research and legal cases have disputed this “age of viability,” but some say it is at the 22 or 23 week mark.

“The state made this law based on medical research that said a fetus can feel pain. You can’t have an abortion where the baby is going to suffer,” Joe Scheidler, director of Pro Life Alliance, told The Christian Post, in defense of the fetal pain legislation.

The law actually is “outdated,” he said. “I mean, if I was put under anesthesia and shot in the head, that would still be illegal, it would still be murder, but I wouldn’t be able to feel pain. Despite it being outdated, it’s a valid law.” explains the development of the 20-week concept:

The science behind the concept of fetal pain is fully established and Dr. Steven Zielinski, an internal medicine physician from Oregon, is one of the leading researchers for it. He first published reports in the 1980s to validate research showing evidence for it.

He has testified before Congress that an unborn child could feel pain at “eight-and-a-half weeks and possibly earlier” and that a baby before birth “under the right circumstances, is capable of crying.”

In addition to her legal challenge to Idaho's fetal pain law, McCormack plans to call attention to what she considers a lack of access to abortions for women in her region. She says it forces women to travel elsewhere for abortions, a luxury she could not afford.

She blames the fetal pain law, which says women can’t get abortions from anyone but licensed physicians and second trimester abortions must be performed in a hospital. The penalty is steep for those who fail to abide: women who purposely cause their own abortions, or who get abortions from unlicensed physicians, face up to five years in prison and up to a $5,000 fine.

According to the Huffington Post, McCormack’s lawyer, Richard Hearn, said that if his client succeeds, it will be a “win for women across the region" who will "be able to access legal and safe abortions in southeastern Idaho."

The National Right to Life Committee said Wednesday it believes the law will be upheld. It issued a statement that said:

"Unborn children recoil from painful stimuli, their stress hormones increase when they are subjected to any painful stimuli, and they require anesthesia for fetal surgery. We are confident that the Supreme Court will ultimately agree and will recognize the right of the state to protect these children from the excruciatingly painful death of abortion."

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