Kathryn Smith at Politico reports:
Abortion rights advocates are claiming a first-round victory Thursday after an Idaho judge struck down a state law banning most abortions after 20 weeks — the first ruling about one of the “fetal pain” laws that a growing number of states have enacted.
“This ruling is a warning to other states around the country that are passing bans on abortion that are unconstitutional and dangerous for women,” Cecile Richards, president of Planned Parenthood Action Fund, said in a statement. “They will not stand.”
The ruling, by a Democrat-nominated district judge, begins a new phase in the legal fight over a spate of laws enacted in the past couple of years that push earlier and earlier bans on abortion, mostly based on the argument that a fetus can feel pain after 20 weeks. Arkansas is the most recent to act, passing both a 20-week ban and a 12-week one — constituting what abortion rights proponents consider the most restrictive state laws in the nation.
A spokesman for the Idaho attorney general’s office said the decision was being reviewed and no decision has been made yet on an appeal.
But many experts on both sides of the abortion debate say the fetal pain laws — though not necessarily this specific Idaho statute — could reach the Supreme Court.
The National Right to Life Committee, which helped to craft the model legislation used in Idaho, said the next step will be an appeal to the 9th Circuit Court of Appeals. That, in turn, could lead to a request that the U.S. Supreme Court take it up.
“We have always recognized that it will take a decision by the Supreme Court to allow expanded protection of unborn children capable of feeling pain, and there are strong indications that five of the sitting justices would look with sympathy on a law providing such protection,” Mary Spaulding Balch, director of state legislation for the National Right to Life Committee, said in a statement.
In the Wednesday ruling, Judge B. Lynn Winmill of the U.S. District Court for the District of Idaho said Idaho’s law, the Pain-Capable Unborn Child Protection Act, is unconstitutional.
Winmill, who was named to the court by President Bill Clinton, said it violates Supreme Court precedent established in Roe v. Wade that specifies that an abortion cannot be restricted before viability, which is now generally considered to be around 23 to 24 weeks.
“The state’s clear disregard of this controlling Supreme Court precedent and its apparent determination to define viability in a manner specifically and repeatedly condemned by the Supreme Court evinces an intent to place an insurmountable obstacle in the path of women seeking non-therapeutic abortions of a nonviable fetus at and after 20 weeks’ gestation,” Winmill wrote.
“Because it appears the [law] was enacted with the specific purpose of placing an insurmountable obstacle in the path of women seeking an abortion after 20 weeks, but before the fetus has attained viability, the section imposing the categorical ban is unconstitutional.”
Much of the abortion litigation is fought out by big advocacy groups, but the Idaho challenge was brought by an Idaho woman, Jennie Linn McCormack, who filed a lawsuit against the 20-week ban along with other state provisions regulating abortion.
Nine other states have passed 20-week bans, and Arkansas this week overrode the governor’s veto and backed the 12-week ban. Other states are considering limits. Texas Gov. Rick Perry this week endorsed a bill that would establish a 20-week ban in his state.
Kristi Hamrick, spokeswoman for Americans United for Life, said, “Efforts like [these state bans] to begin rolling back and limiting abortion to a level in line with public opinion are a trend, and while this isn’t a piece of AUL legislation, we believe that you’re going to see more of this type of legislation.”
Abortion rights groups have challenged two 20-week bans, in Arizona and Georgia. Both laws have been temporarily blocked as courts consider the cases.
The ACLU and the Center for Reproductive Rights have also pledged to take legal action against the new 12-week ban in Arkansas.
Commenting on the Idaho case, Jennifer Dalven, director of the ACLU Reproductive Freedom Project, said: “We are happy to see that the judge recognized that this law was an unconstitutional and dangerous intrusion into a woman’s private medical decision making. Abortion is a complex and deeply personal decision that should be made by a woman, her family and her doctor — not politicians.”