Idaho doctor-lawyer fights fetal pain abortion law

Posted on April 17, 2012

Seattle Times, April 17, 2012 by Rebecca Boone

The first challenge to the constitutionality of the so-called fetal pain anti-abortion laws enacted in several states has come from an unlikely place. So has the second.

BOISE, Idaho —

The first challenge to the constitutionality of the so-called fetal pain anti-abortion laws enacted in several states has come from an unlikely place. So has the second.

Rick Hearn, the lawyer in the center of this fight, represents an Idaho woman challenging her state’s abortion laws in an effort to avoid future prosecution.

The same Rick Hearn, who also is a physician, is attempting to jump into the case as a plaintiff using his status as a doctor, even though he has never terminated a pregnancy, in an effort to make sure that if the case is successful, it applies broadly enough to get his client off the hook for good.

“I was forced to take this highly unusual step to try to intervene,” Hearn said. “I didn’t want to.”

More than a half-dozen states, including Arizona and Georgia this month, have recently banned abortion after more than four months of pregnancy, citing research that has divided the medical community by suggesting that a fetus can feel pain at about 20 weeks.

Such legislation had overwhelming support when it came up in Idaho last year.

And even though the state’s attorney general warned at the time that the plan might not be constitutional, lawmakers went ahead undeterred.

“The intent of the bill is to protect the innocent,” said Idaho state Rep. Lynn Luker on Monday.

The Boise Republican added, “The focus of the bill is based on science, that at least by 20 weeks an unborn child can and does feel and react to pain.”

Idaho Republican Gov. Butch Otter, who presides over a state with more conservatives in the Legislature than any other except Wyoming, signed the ban a year ago to the month.

But Hearn says the measure is an overreach that jeopardizes “the small people” and, because of how it’s written, is nearly impossible for anyone but a doctor to challenge.

One of those “small people,” according to Hearn, is his client Jennie Linn McCormack.

“I’m intervening in order to assert Jennie’s right to obtain an abortion from a physician,” Hearn said. “And the courts have said that doctors can assert the rights of patients, especially in abortion contexts.”

McCormack’s involvement began the day before Christmas in 2010, months before Idaho’s fetal pain law went into effect. Authorities say that day McCormack gave herself an abortion using pills purchased online.

A friend of McCormack’s sister became upset, authorities have said, and called police in the rural eastern town of Pocatello, reporting an illegal abortion.

Investigators looked into the claim and discovered a fetus in a box at McCormack’s home. Examiners later said the fetus had been developing for more than five months.

Authorities charged McCormack with performing an unlawful abortion, which makes it a felony for anyone other than a health care professional to be involved with terminating a pregnancy.

Hearn defended McCormack and the charges were dismissed “without prejudice,” meaning she could be charged again at any time.

The lawyer – who shut down his medical practice about six years ago – didn’t want his client living with the constant threat of prosecution and decided to turn the tables. Rather than wait for the law to come after his client, he and McCormack decided to go after the law.

Hearn advanced a lawsuit fighting for McCormack’s right to take medication to induce an abortion and for doctors’ rights to prescribe such medication. The challenge also fights the fetal pain abortion ban because prosecutors say McCormack terminated her pregnancy after Idaho’s limit of 19 weeks.

McCormack sued in September, becoming the first woman in the nation to challenge the constitutionality of a fetal pain abortion ban.

The federal lawsuit says Idaho’s anti-abortion legislation is an unconstitutional violation of privacy rights, reviving opinions similar to the arguments in Roe v. Wade.

But a judge refused to make the lawsuit a class action case, a significant setback for Hearn and McCormack.

Even if they won, doctors who provide abortions after 19 weeks or prescribe drugs to terminate a pregnancy could still be criminally prosecuted in Idaho, according to the ruling. Hearn said it effectively ensured that women would still be unable to get abortions after 19 weeks without leaving the state or illegally obtaining prescription drugs online.

Hearn said in order for McCormack to have standing to fight all aspects of the law “she would have to be pregnant, want to get an abortion, and for some reason have to wait until after the 19 weeks.”

He added, “Viability would begin three or four weeks after that, so it would be virtually impossible for a woman to challenge that statute.”

So to bring the case in a way that would overturn the law and remove the threat of a five-year prison term looming over McCormack, they needed a doctor to intervene.

Convenient, then, that McCormack’s lawyer was also an M.D. – albeit one who specialized in arthritis and kidney disease.

Hearn’s intervention attempt is unheard of among legal experts contacted by The Associated Press.

Deputy Idaho Attorney General Clay Smith dismissed Hearn’s move as merely an attempt to introduce issues that McCormack has no standing to present.

Hearn did not dispute that.

“I’m not trying to trick anybody or anything,” he said.

Bill Horton, a legal ethics expert, says the case is unusual but doesn’t seem to present a conflict of interest.

“This is like nothing that I’ve ever read about or encountered. But these abortion rights lawsuits tend to bring out unusual strategies sometimes.”

Posted in: Arizona, Georgia, Idaho