The Painless Truth: Challenging Fetal Pain-Based Abortion Bans

After her arrest for an alleged violation of title 18, section 606 of the Idaho Code, which criminalizes all abortions not performed by a physician in Idaho, Jennie Linn McCormack, a thirty-two-year-old mother of three and resident of southeast Idaho, brought a lawsuit challenging three aspects of Idaho’s abortion statute. McCormack’s lawsuit includes a challenge to the constitutionality of Idaho’s Pain-Capable Unborn Child Protection Act, which makes it illegal for a woman to receive an abortion when the “probable postfertilization age of the woman’s unborn child is twenty (20) or more weeks.” Although the United States District Court for the District of Idaho dismissed her challenge to the Pain-Capable Unborn Child Protection Act due to a lack of standing (because McCormack was not pregnant when she filed suit), it later allowed McCormack’s lawyer Richard Hearn, who is also a medical doctor, to intervene as a plaintiff challenging the law as it applies to doctors who seek to perform abortions in Idaho. Because of Hearn’s intervention, Idaho’s law may be the first fetal pain law subject to a constitutional challenge. This Comment argues that based on United States Supreme Court precedent on the abortion right, statutes banning abortion twenty weeks postfertilization are unconstitutional and thus should be overturned.