Idaho “Fetal Pain” Bill Struck Down By Federal Court

On Wednesday, a federal judge ruled that an Idaho law banning abortion after 20 weeks is unconstitutional because it places an undue burden on a woman seeking to terminate a pregnancy before viability.

U.S. District Judge B. Lynn Winmill wrote in his opinion, “the Idaho Legislature’s enactment of the [fetal pain law] in light of this opinion is compelling evidence of the legislature’s ‘improper purpose’ in enacting it.” He also wrote, “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.”

In delivering his decision the judge said, “the purpose of the [law’s] categorical ban is to protect the fetus – not the mother. In essence, [the law] embodies a legislative judgment equating viability with 20 weeks’ gestational age, which the Supreme Court expressly forbids.”

The ban, based on the notion that a fetus can feel pain at 20 weeks gestation, was only one part of the anti-abortion law that was overturned. Judge Winmill also struck down two additional provisions. One required that an abortion be performed by a physician in a staffed clinic, which all but eliminated access to medical abortions, and the other required any second trimester abortion to be performed in a hospital and could have potentially criminalized a woman seeking a second trimester abortion.

In his decision, Judge Winmill wrote “Historically, abortion statutes sought to protect pregnant females from third parties providing dangerous abortions. As a result, most states’ abortion laws traditionally criminalized the behavior of third parties to protect the health of pregnant women – they did not punish women for obtaining an abortion. By punishing women, Idaho’s abortion statute is therefore unusual.”

Judge Winmill’s decision marks the first time a fetal pain bill has been overturned in federal court.


Politico 3/8/2013; LA Times 3/7/2013; Associated Press 3/6/2013

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