Court throws out ‘unconstitutional’ 20-week abortion ban in Idaho

By David Ferguson
Friday, March 8, 2013 12:45 EDT
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Ultrasound of 20 week fetus via Shutterstock
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A state court judge struck down Idaho’s law banning all abortions after the 20th week of pregnancy on Wednesday. According to Politico, Judge B. Lynn Winmill of the U.S. District Court for the District of Idaho ruled that the so-called Pain Capable Unborn Child Protection Act is unconstitutional.

Cecile Richards, president of Planned Parenthood for America, declared the ruling a victory for women and a blow to similar laws that have been proposed or enacted in multiple U.S. states.

“This ruling is a warning to other states around the country that are passing bans on abortion that are unconstitutional and dangerous for women,” said Richards in a statement. “They will not stand.”

So-called “fetal pain” laws are based on the belief that fetuses begin to feel and perceive pain at 5 months of pregnancy. Anti-choice activists and politicians, unencumbered by medical evidence, have pushed forward measures similar to Iowa’s across the country.

A Stanford University Medical Center study published in 2011 showed that embryos do not develop and independently functioning nervous system until two or three weeks before delivery. Studies of fetal brain activity show that embryos are only capable of feeling pain at about 35 to 37 weeks.

Nonetheless, the anti-choice lobbying group the National Right to Life Committee (NRLC), a key architect of fetal pain abortion bans, plans to appeal the Idaho district court’s ruling and, if possible, take the case all the way to the Supreme Court.

“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,” said a statement from Mary Spaulding Balch, director of state legislation for the NRLC.

Judge Winmill found the Idaho law unconstitutional on the grounds that it violates Supreme Court precedent in Roe v. Wade that abortions performed prior to fetal viability cannot be restricted. Fetal viability is currently considered to be around 24 weeks, a full month after the Idaho law’s cut-off date.

In his decision, Winmill wrote that Idaho’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” is an effort to create an “insurmountable obstacle” to abortion access for women whose pregnancies have progressed beyond 20 weeks.

“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,” he wrote, “but before the fetus has attained viability, the section imposing the categorical ban is unconstitutional.”

Nine other states have passed 20-week abortion bans. Arkansas has passed the most restrictive abortion law in the country, however, banning all procedures past 12 weeks.

Jennifer Dalven, director of the ACLU Reproductive Freedom Project told Politico on Thursday, “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.”

[image via Shutterstock]

David Ferguson
David Ferguson
David Ferguson is an editor at Raw Story. He was previously writer and radio producer in Athens, Georgia, hosting two shows for Georgia Public Broadcasting and blogging at Firedoglake.com and elsewhere. He is currently working on a book.
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