March 7, 2013
The United States District Court of Idaho held earlier this week that the Idaho Pain–Capable Unborn Child Protection Act was unconstitutional as placing an undue burden on a woman’s right to have an abortion. McCormack v. Hiedeman, 4:11-CV-00433-BLW, 2013 WL 823318 (D. Idaho Mar. 6, 2013). The effect of Idaho’s abortion statutes essentially prevented legal abortions after 20 weeks gestation by making it a felony to perform an abortion after 20 weeks unless performed in a hospital and done “in the best medical interest” of the pregnant woman (as determined by a physician). The court also struck down statutes that require first trimester abortions be performed by a physician in a “properly staffed and equipped” office or clinic, to require the physician to “make satisfactory arrangements with one or more acute care hospitals within reasonable proximity,” and the requirement that all second trimester abortions to be performed in a hospital.
The court noted that requiring the procedure to be performed in the hospital was a substantial obstacle, and had previously been addressed twice by the U.S. Supreme Court, holding that “prohibiting outpatient procedures in a clinic after the first trimester was an impermissible burden on a woman’s right to an abortion.” Regarding first trimester abortions, the court held that the language of the statutes requiring “satisfactory arrangements” and “proper” staffing were unconstitutionally vague. The court expressed concern that the statutes could have a chilling effect on physician’s practice.
The court determined that the PUCPA’s restrictions place “not just a substantial obstacle, but an absolute obstacle, in the path of women seeking such abortions.” McCormack v. Hiedeman, 4:11-CV-00433-BLW, 2013 WL 823318 (D. Idaho Mar. 6, 2013). The court held the law as unconstitutional as an “insurmountable obstacle in the path of women seeking an abortion after twenty weeks, but before the fetus has attained viability.” The fact that that statute “embodies a legislative judgment equating viability with twenty weeks’ gestational age” creates a problem, because doing so has been expressly forbidden by the Supreme Court. The court noted that Idaho’s own Attorney General had opined that the law was unconstitutional for this reason.
Case: 2013 WL 82331
Statutes: I.C. § 18-606, I.C. § 18-608
Idaho AG Opinion: 1993 Idaho Op. Atty. Gen. 5