A woman in Idaho has brought the first lawsuit directly challenging the constitutionality of the “fetal pain” abortion ban.
Jennie Linn McCormack, was briefly charged with having an illegal abortion in June, McCormack and her sister acquired RU-486 (the abortion pill) from the internet where she took said pills and aborted the fetus in her home.
Idaho is one of six states that have banned abortions after 20 weeks due to the belief that that is when the fetus begins to feel pain. In 2010, Nebraska legislation passed the nation’s first fetal pain law which paved the way for the ban. Idaho law bars women from getting abortions from anyone but licensed Idaho physicians. Furthermore, the state requires that second-trimester abortions be performed in a hospital.
One should note that there are no elective-abortion providers in southeastern Idaho, forcing women seeking the procedure to travel elsewhere. McCormack was unemployed and had a monthly income of just $200-$250. Given these circumstances, and the fact that McCormack already had 3 children, there was no way she would have been able to afford the time or money required to travel to Salt Lake City to obtain a “legal” abortion.
Opponents of the ban hold that the law violates the Constitution because it doesn't contain an exception allowing for abortions if necessary to preserve the mother's health or well being. The ban doesn’t take into consideration the unique circumstances of individual women.
McCormack is seeking class action status in her law suit against Mark Hiedeman, the state prosecutor. She is also challenging other aspects of the abortion ban holding that it violates the constitution.
What is so frustrating about these bans is that they are often based on so called scientific claims that are supposedly about protecting the fetus even if it means ignoring the wishes or best interest of the mother. In the case of Danielle Deaver (see link above), she was denied an abortion even after it was discovered that due to a lack of amniotic fluid her uterus was literally crushing the fetus. Deaver had gone through several other miscarriages where the Doctors had been able to induce labor once determining that the fetus had little to no chance of taking a first breath. In these instances the Deavers decided together to spare the pain of Danielle and the fetus by inducing labor.
Nebraska had enacted the nation's first fetal pain legislation, banning abortions after 20 weeks gestation. So the Deavers were forced to wait over a week to deliver baby Elizabeth, who died after just 15 minutes. Even though the risk of infection for Danielle was high and the fetus was being crushed by the uterine walls it was impossible to induce legally because the fetus still had a heartbeat and the mother's life was in no immediate danger.
In this particular case one must wonder why such a private tragic situation turned into a very public news item. The Deavers wanted their child and wanted to prevent the pain and suffering of their family; why then, is it okay for the law to prevent them from doing so? Doesn’t the right to privacy equal, privacy? Who was really hurt because of this law?
All part of a disturbing trend, these restrictions do little else except hurt women. In the case of Jennie Linn McCormick, the fact that she lived in an area without an accessible or affordable abortion option led her to seek alternate means. In Idaho, women who cause their own abortions, or who get abortions from unlicensed physicians, face up to five years in prison and up to a $5,000 fine.
In Oklahoma, a law requires women to undergo a sonogram, and depending on the state of pregnancy, it could be a transvaginal one, which involves insertion of a wand. There is no exception for sexually assaulted women. Texas and Ohio took steps earlier in the year to enact a law that banned abortion as soon as a doctor could detect a heartbeat. It is generally agreed that a heartbeat can be detected as early as six weeks. Federally, it is legal to have an abortion up to 24 weeks and longer if the mothers health is in jeopardy.
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