One Woman’s Lawsuit Against Idaho’s ‘Fetal Pain’ Law May Be Headed To The Supreme Court

On Wednesday, an Idaho woman prosecuted for terminating her pregnancy with an abortion pill filed a lawsuit against the state, challenging the constitutionality of their late-term abortion ban. A law passed last year bans abortions after 20 weeks based on the medically-questionable notion that fetuses can feel pain at that stage.

Today, the Washington Post reports that this case, with the host of constitutional and medical questions it raises, may be headed to the Supreme Court. It’s an unusual case because it’s being brought by an individual, Jennie Linn McCormack, and not one of the major groups that usually fight these issues in court:

The reproductive health community has been hesitant to take on the late-term bans. Advocates widely believe that such bans violate constitutional protections for abortion. But there’s concern that the sitting high court won’t be an ally on the issue. Advocates view some recent decisions, particularly a 2003 ruling that upheld the Partial Birth Abortion Ban Act, as a sign that the Supreme Court could use a new case to further restrict women’s access to abortion.

It’s telling, then, that none of the major groups that tend to litigate on abortion issues — such as the Center for Reproductive Rights and Planned Parenthood — are involved in the Idaho lawsuit.

McCormack describes herself as a mother of three who ordered medication to induce an abortion over the Internet because a doctor’s services weren’t available in southeast Idaho. McCormack, unmarried and unemployed, was trying to support three children on $200 to $250 a month and didn’t have the money to travel out of state for a legal abortion. The state’s case against McCormack was dismissed due to lack of evidence.

Idaho is one of six states that has passed late-term abortion bans on the basis of fetal pain in the last two years. Until now, none of them have been challenged in court. A recent study by Britain’s Royal College of Obstetricians and Gynecologists found that fetuses can’t feel pain before 24 weeks — and probably don’t feel it after that either.

The Court may decide that McCormack does not have the legal standing to bring the case. But experts say the case is significant because, in addition to the fetal pain argument, it touches on recent changes in abortion methods. Arthur Caplan, a professor of medical ethics at the University of Pennsylvania School of Medicine, explains that “the future of abortion is pharmaceuticals, not surgical procedures.” The abortion medication RU486 has been legally available in the U.S. since 2000 and now accounts for a quarter of abortions before nine weeks.