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Ninth Circuit: Idaho’s 20-week abortion ban is unconstitutional

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PASADENA, CA, June 2, 2015 (LifeSiteNews) – The Ninth Circuit Court of Appeals ruling Friday that Idaho's ban on abortions after 20 weeks is unconstitutional not only endangers unborn babies but puts women’s lives at risk, warn pro-life advocates.

The three-judge panel's decision was written by Judge Harry Pregerson, a Carter appointee who was wounded in World War II. In the decision, Pregerson wrote that "Section 18-505, which prohibits abortions of fetuses of twenty or more weeks postfertilization, was facially unconstitutional because it categorically bans some abortions before viability."

According to the panel, because the Supreme Court has previously ruled that viability is the limit at which abortions can be made illegal, the Idaho law was unconstitutional.

Other components of the Idaho law were overturned by the panel, which "held that Section 18-608(2), which requires that all second-trimester abortions occur in a hospital, was facially unconstitutional because it places an undue burden on a woman's ability to obtain an abortion by requiring hospitalizations for all second-trimester abortions."

The panel cited two prior Supreme Court cases to justify this part of the decision -- Planned Parenthood Ass'n of Kansas City, Mo., Inc. v. Ashcroft in 1983 and City of Akron v. Akron Center for Reproductive Health, Inc. Specifically, the panel quoted the Supreme Court's decision in Ashcroft that "such a requirement unreasonably infringes upon a woman's constitutional right to obtain an abortion."

Operation Rescue's Cheryl Sullenger, however, told LifeSiteNews that "outpatient clinics, such as those at Idaho's four abortion facilities, are not equipped to treat life-threatening medical emergencies that are more likely to occur during late-term abortions.  This places the lives of women at risk."

Sullenger pointed to a 2012 incident where a woman was transported by ambulance from a Planned Parenthood clinic to a nearby hospital. According to Operation Rescue's report, "the cause of the medical emergency and condition of the woman is currently unknown; however, activists confirm that abortions were performed today at that Planned Parenthood facility."

A third part of the Idaho law that was overturned was a section requiring upgrades to abortion clinic facilities and doctor admitting privileges. According to the panel, "Section 18-608(1), requiring, among other things, that abortions during the first trimester take place in a medical office that is properly staffed and that the responsible physician make satisfactory arrangements with an acute care hospital in care of complications or emergencies in conjunction with § 18-605 was unconstitutionally vague."

According to the panel, "To avoid unconstitutional vagueness, an ordinance must (1) define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited; and (2) establish standard to permit police to enforce the law in a non-arbitrary, non-discriminatory manner."

The decision cited several examples of words that it considered too vague, including "properly" and "satisfactorily," as well as the law's requirement "that patients 'be treated with consideration, respect, and full recognition of the patient's dignity and individuality.’"

The Circuit Court's decision comes four years after Idaho became the third state in the country to implement a late-term abortion ban. The ban was challenged by Jennie McCormack after she aborted her child with RU-486, and was arrested under multiple Idaho laws, including the 2011 ban and, according to NPR, a 1972 law that makes self-abortion illegal.

While the criminal charges were eventually dismissed, court documents show that McCormack decided to file a class-action lawsuit against then-Bannock County prosecutor Mark Hiedeman.

After McCormack was found to lack standing for part of her lawsuit, her attorney -- a licensed physician who has practiced law full-time since 1997 -- joined the case.

Court documents show that Dr. Richard Hearn, "moved to intervene 'on his own behalf and on the behalf of his patients.'"

"Dr. Hearn is a licensed physician as well as an attorney in Idaho," say court documents, "and has stated his intent to provide medical abortions by 'prescrib[ing] FDA approved medications to women in Bannock County, Idaho such as McCormack who seek to medically (nonsurgically) terminate their pregnancies prior to fetal viability in violation of the restrictions contained in’ the 20-week ban law."

However, while Hearn was granted standing where McCormack was not -- he has been a registered physician with the Idaho State Board of Pharmacy and the Food & Drug Administration even while practicing law -- court documents note that he "has not provided medical abortions in the past, does not have a medical office in which to treat patients, and has practiced as a full-time attorney since 1997.   

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The case had received little attention, NPR reported in April 2012, and put pro-life and pro-abortion groups in tough positions. Susan B. Anthony List president Marjorie Dannenfelser told NPR at the time, "We do not think women should be criminalized. Criminal sanctions or any kind of sanctions are appropriate for abortionists, and not for women.”

Leading abortion groups also appeared hesitant to jump on the case. Quoting Slate's Will Saletan, NPR noted three years ago that "if you’re a pro-choice group right now, the last thing you want to do is bring a case before the Roberts Court.”

Additionally "this is not the plaintiff you want," Saletan wrote. "Someone who procured her own abortion, fairly late in pregnancy. You want to choose your plaintiff very carefully.”

After Friday's decision, however, it appears that at least one abortion industry leader is no longer reticent about the case. Planned Parenthood tweeted: "It's a win for women in Idaho! Thake [sic] THAT, 20-week abortion ban." The tweet also included the image of a fist, which was immediately mocked and criticized by dozens of pro-life advocates.

The office of the Idaho Attorney General declined to provide comment to LifeSiteNews. A spokesperson said that the office was "taking [the decision] under advisement."



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