NRL News

Appeals Court panel hears challenge to Idaho’s Pain-Capable Unborn Child Protection Act

by | Jul 21, 2014


By Dave Andrusko

Jennie Linn McCormack sits with her attorney, Richard Hearn.

Jennie Linn McCormack sits with her attorney, Richard Hearn.

When last we visited the case of Jennie Lynn McCormack who self-aborted in 2010 using unspecified abortifacient pills purchased over the Internet when she was between 18 and 21 weeks pregnant, Judge B. Lynn Winmill of the United States District Court for the District of Idaho had just overturned Idaho’s Pain-Capable Unborn Child Protection Act.

Last Friday, a three-judge panel of the notoriously pro-abortion 9th Circuit Court of Appeals heard arguments from the plaintiff’s lawyer/physician, Richard Hearn, who hasn’t practiced medicine in over 16 years, and the Idaho Deputy Attorney General Clay Smith.

The case is so convoluted that you have to know the background before what took place July 18 makes any sense.

Even the zaniest pro-abortionist is leery about using RU-486 (the likely abortifacient) much past 9 weeks, certainly not past 11 weeks. Using it a couple of months later in her pregnancy was dangerous to Ms. McCormack, who has three living children.

According to a story in Newsweek written by Nancy Hass, when she saw the size of the baby, McCormack was scared, “She didn’t know what to do—‘I was paralyzed,’ she says—so she put it in a box on her porch, and, terrified, called a friend. That friend then called his sister, who reported McCormack to the police.”

Pocatello police officers investigated and found the baby’s body.

McCormack was charged in May 2011 under an Idaho law that makes it illegal for anyone other than a health care professional to be involved with ending a pregnancy. Hearn defended McCormack, the case was dismissed, and the state attorney general has said repeatedly he has no intention of retrying McCormack—that the case was “moot.”

But McCormack challenged the law in federal court, as she did the Pain-Capable Unborn Child Protection Act which was not in existence when she aborted. Hearn (according to Winmill) said he “would perform medical abortions outside a clinical or hospital setting through the second trimester” if the Idaho’s law were struck down. That presumably means “into” the second trimester, although how far in neither Hearn nor Winmill give an indication they care about.

Judge Winmill concluded the state law was unconstitutional but went on to hold that McCormack and her attorney (a non-practicing physician) did have standing to challenge the Pain-Capable Unborn Child Protection Act.

The state appealed the ruling in November, saying McCormick couldn’t argue the law put an undue burden on women because charges against her had been dropped and the case was moot.

Okay, back to Friday.

Hearn argued that (although there was no evidence the state was interested in so doing) at some unspecified time in the future Idaho could reinstate the charges, within the 5-year statute of limitations.

Idaho Deputy Attorney General Smith challenged Hearn’s standing. According to Courthouse News Service, he told the panel: “That issue is whether Ms. McCormack’s attorney who is also a licensed but nonpracticing physician, may offer medication abortions which would allow his patients to complete the abortion in their own home, in a manner that the appellant believes is inconsistent with the relevant FDA drug labels, and with protocols promulgated by the American College of Obstetricians and Gynecologists, and the National Abortion Federation.”

(Hearn is not trained in obstetrics and gynecology. His practice was in nephrology [kidney diseases] and rheumatology [arthritis and other musculoskeletal diseases].)

Smith also said, “Dr. Hearn’s proposed provider plan is inconsistent with and antagonistic to the wellbeing of the class of individuals whose rights he’s attempting to assert,” according to the Associated Press. “The notion that he can therefore challenge … the Pain-Capable Unborn Child Protection Act is simply incorrect.”

Categories: Judicial