NRL News

Court Hearing Friday on Idaho’s Pain-Capable Unborn Child Protection Act

by | Sep 8, 2011

By Dave Andrusko

NRLC State Legislative Director Mary Spaulding Balch, J.D.

By Friday evening, we will have a pretty good idea what tack an opponent of Idaho’s Pain-Capable Unborn Child Protection Act will be taking. On September 9 Richard Hearn, the lawyer for Jennie Linn McCormack, an Idaho woman who aborted her 20-21 week-old- baby using RU486 purchased over the Net, will be asking the U.S. District Court for Idaho for a temporary restraining order of a law which the legislature passed by overwhelming margins in April.

In passing the law, the legislature determined that there is substantial medical evidence concluding that unborn children are capable of experiencing pain and that the state has a compelling state interest in protecting these pain-capable children.

As we noted last week, it was not the ”usual suspects,” such as the New York-based Center for Reproductive Rights (CRR), who filed the challenge. Since the CRR has been mumbling about testing one of these laws (five states have them) in court for over a year, it is fair to conclude this is not the “perfect” case where they think the stars are aligned perfectly.

“Pro-abortionists are looking for a ‘hard case’ to challenge these laws, which typically means a baby they say is ‘born dying,’” Balch said. “Ms. McCormack did not wish to be pregnant and took an abortifacient that even pro-abortion organizations do not recommend for a baby this advanced.”

The complaint in McCormack’s  lawsuit claims that the law fails to contain a “constitutionally acceptable exception” allowing for an abortion if necessary to preserve the health of the mother. However Dr. Sean Patrick Kenney, M.D., a board certified obstetrician/gynecologist, and assistant clinical professor at Creighton University School of Medicine in Omaha, Nebraska, rebuts the contention.

“The language of the law makes fully adequate provision for those rare cases, probably occurring no more than 1-2 times per 5,000 births, when medical complications require premature delivery or abortion of an unborn child after the stage at which the child is capable of feeling pain,” noted Dr. Kenney.

As for the science underlying Pain-Capable Unborn Child Protection Acts,  Mary Spaulding Balch, J.D., director of state legislation for National Right to Life, explains that a significant number of scientific studies support the state’s conclusion that unborn babies are capable of feeling pain by twenty weeks (20) weeks after fertilization.

“Unborn children recoil from painful stimuli, their stress hormones increase when they are subjected to any painful stimuli, and they require anesthesia for fetal surgery,” Balch said. “We are confident that the Supreme Court will ultimately agree and will recognize the right of the state to protect these children from the excruciatingly painful death of abortion.”

On average, 18,000 abortions are performed every year in the United States on these pain-capable children, including at some Planned Parenthood clinics. An online library of research and further information is available at

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Categories: Legislation