SALMON, Idaho (Reuters) – An Idaho woman prosecuted for terminating her own pregnancy with abortion pills she ordered online won a temporary court order on Friday barring enforcement of the decades-old law under which she was charged.
But the federal judge in the case also rebuffed her separate bid to block a newly enacted state law that bans abortions after 20 weeks of pregnancy unless there is proof the woman’s life is in danger.
On that issue U.S. District Judge B. Lynn Winmill ruled that Jennie Linn McCormack, 33, lacked legal standing to seek a temporary restraining order against Idaho’s new “fetal pain” abortion law because she was no longer pregnant and could not demonstrate imminent harm from the statute.
Her lawsuit is believed to be the first federal court case challenging any of several late-term abortion bans enacted in Idaho and five other states the past two years, based on controversial medical research suggesting a fetus feels pain starting at 20 weeks of gestation.
McCormack’s lawyer, Richard Hearn, said he would press to establish his client’s standing at a future hearing on the new law, which was passed by the Republican-led Legislature and signed by Republican Governor Butch Otter in April.
The suit, filed by McCormack in August, stems from a criminal charge brought against the Pocatello mother of three — and later dismissed for lack of evidence by a judge — under a 1972 Idaho law making it a felony for a woman to end her own pregnancy.
Because that criminal case could technically be refiled against her, Winmill ruled that McCormack did have standing to seek a court order against further enforcement of the measure.
He also ruled that McCormack was likely to succeed on the merits of her claim that the 40-year-old statute poses an unconstitutional barrier to her rights to seek an abortion.
Although the temporary restraining order he granted technically applies only to Bannock County prosecutors, Hearn said it would in effect keep the law from being enforced anywhere in the state for the time being.
Such an occurrence seems unlikely. County Prosecuting Attorney Mark Hiedeman said the case he brought against McCormack marked the first time in his 27 years as a prosecutor that he had ever invoked the 1972 statute. He also said he was not sure it was ever applied elsewhere in Idaho.
The two-pill abortion medication known as RU486 has been legally available in the United States since 2000, and by 2008 accounted for about one-fourth of U.S. abortions performed before nine weeks gestation, according to the Guttmacher Institute, an abortion rights think tank.
As approved by the Food and Drug Administration, the two drugs — mifepristone and misoprostol — can be obtained from a physician and are not available in pharmacies. The medication is generally indicated for pregnancies of less than eight weeks.
Prosecutors said McCormack terminated her own pregnancy using abortion pills she obtained from an online distributor at between 20 and 21 weeks on December 24, 2010. Hearn has said she believed she was getting the pills from a legitimate medical provider.
Similar late-term abortion bills were adopted this year in four other states besides Idaho — Alabama, Indiana, Kansas and Oklahoma. All were modeled after the “fetal pain” bill enacted last year in Nebraska, according to abortion rights advocates.
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