SALMON, Idaho (Reuters) - An Idaho woman prosecuted for terminating her own pregnancy with an abortion pill ordered over the Internet has filed suit challenging a decades-old law under which she was charged, as well as a new state ban on abortions after 20 weeks of gestation.
The lawsuit is believed to be the first federal court case against any of several late-term abortion bans enacted in Idaho and four other states during the past year, based on controversial medical research suggesting a fetus feels pain starting at 20 weeks of development.
Modeled after a 2010 Nebraska “fetal pain” law yet to be challenged, similar measures were considered in at least 16 states this year as anti-abortion groups made good on sweeping Republican gains from last year’s elections.
The new Idaho law, passed by the Republican-led legislature and signed by Republican Governor Butch Otter in April, makes it a felony to perform an abortion after 20 weeks unless there is proof the pregnancy endangers the woman’s life.
But the class-action lawsuit filed last Wednesday in U.S. District Court for Idaho stems from a charge brought against Jennie Linn McCormack, 33, of Pocatello — and later dismissed for lack of evidence by a judge — under a 1972 Idaho law making it a felony to end one’s own pregnancy.
Similar measures are on the books in just a handful of states, said Elizabeth Nash, who tracks abortion policies for the Guttmacher Institute, an abortion rights think tank.
Arthur Caplan, a professor of medical ethics at the University of Pennsylvania School of Medicine, said the case is significant because it touches on relatively recent changes in abortion methods.
“It’s headed in an interesting, fascinating and important direction because the future of abortion is pharmaceuticals, not surgical procedures,” he said.
The two-pill abortion medication known as RU486 has been legally available in the United States since 2000, and by 2008 accounted for about one-fourth of U.S. abortions performed before nine weeks gestation, according to Guttmacher.
As approved by the Food and Drug Administration, the two drugs — mifepristone and misoprostol — can be obtained from a physician and are not available in pharmacies. And the medication is generally indicated for pregnancies of less than eight weeks.
The first pill, typically administered in a doctor’s office, blocks the hormone progesterone, needed to maintain a pregnancy, and the second, taken at home 24 to 72 hours later, induces uterine contractions that cause the woman to miscarry.
The 1972 Idaho law discriminates against McCormack and other women of limited means in southeastern Idaho, which lacks any abortion providers, by forcing them to seek more costly surgical abortions far from home, the lawsuit says.
The newly enacted Idaho law banning late-term abortions was not yet in effect when McCormack terminated her own pregnancy using abortion pills she obtained from an online distributor at between 20 and 21 weeks of gestation on December 24, 2010, according to her lawyer, Richard Hearn.
But Hearn, also a physician, argues that both the 1972 law and the newly enacted Idaho statute pose other unconstitutional barriers to abortion. He cited, for example, the failure to exempt third-trimester pregnancies (25 weeks or more) in cases where a woman’s health, not just her life, is at risk.
According to court documents, McCormack, a mother of three, learned she was pregnant in the fall of 2010 and ordered pills online she believed were prescribed by a distant healthcare provider to induce an abortion.
She hoped to avoid seeking a surgical abortion in Utah that she could ill afford on a monthly income of $200 to $250.
“I learned that medication for inducing abortions had been approved for use in the United States and could be purchased over the Internet,” she wrote in a sworn statement.
The case comes as recent public opinion polls show, for the first time, a majority of Americans generally opposing abortion, said Scot Powe, constitutional law scholar at the University of Texas School of Law.
“It’s a thin majority but it compares to a time 10 or 15 years ago when most Americans would have supported the right to choose,” he said.
Kerry Uhlenkott, legislative coordinator for Right to Life of Idaho, said she had not yet reviewed the legal challenge and declined to comment on the case. But she pledged to continue to “fight to protect the unborn.”
Hearn seeks to bar county prosecutors from charging other women with crimes under the state’s abortion laws until their constitutionality is determined. A hearing on the request is set for September 8 in Boise.
(The case of McCormack vs. Hiedeman is 4:11-cv-00397)
Editing by Steve Gorman and Jerry Norton