I testified in the Idaho legislature in favor of the Pain-Capable Unborn Child Protection Act. My written testimony can be found here. The law, as enacted is a modest expansion of protection for the unborn. Currently the US Supreme Court has recognized the state’s right to strictly limit access to abortion after the child has become capable of living outside the womb. This as known as the “viability rule.” (I have previously blogged about Randy Beck’s series of articles exploring the genesis and scope of this rule.) Various statements by the Justices suggest that viability (at least for these purposes) begins around 23-24 weeks of gestation, and at that point the state may prohibit abortion except in cases where abortion is necessary to preserve the life or health of the mother.
The Idaho law prohibits abortions at 22 weeks gestation (which is the same as 20 weeks “post-fertilization” – the phrase used in the Act) except in cases where it is necessary to preserve the life or health of the mother. This one-week extension of the state’s interest in protecting the unborn child is grounded in the large body of medical and scientific research showing that a fetus is capable of feeling pain at 20 weeks post-fertilization. While the number of lives saved by the Act is relatively small (the total number of reported abortions in Idaho performed after fifteen (15) weeks gestation has been twenty (20) or fewer each of the last fifteen(15) years from 1994-2009), the principle that the state can protect human beings who share our capacity to feel pain is quite important.
The plaintiff challenging the Act attacks both the Idaho law generally regulating abortions, and also the Pain-Capable Unbor Child Protection Act itself. The Complaint asks for certification of a class of women seeking abortions amd makes several general claims. As to her own situation, she claims that she has procured one abortion from a Utah provider and self aborted a second pregancy using RU-486, which she characterizes as used in the “early stages of pregnancy.” She fails to provide any statements showing how the Pain-Capable Unborn Child Protection Act affected or affects her since it is limited to abortions at or after 20 weeks post-fertilization, a time beyond the recognized use of medical abortions in the United States. The case is McCormack vs. Hiedeman, 4:11-cv-00397, and pleadings are available on the Pacer site for the U.S. District Court for Idaho.
Absent some substantial change in the facts as pled, I suspect that all claims regarding the Pain-Capable Unborn Child Protection Act will ultimately be dismissed.