PASADENA, Calif. (CN) - The Idaho attorney general on Friday urged the 9th Circuit to reverse a ruling that Idaho's ban on abortions after 20 weeks of pregnancy is unconstitutional, arguing that a woman and physician do not have standing to pursue their claims.
The lower court judgment was handed down after Bannock County resident Jennie Linn McCormack filed a federal class action alleging she was charged in 2010 with having an "unlawful abortion" in her second trimester.
According to court records, McCormack, a single mother with three children, was living on $200 to $250 a month when she discovered that she was pregnant. With no abortion clinics in the eight southeastern Idaho counties, including Bannock, she faced a trek to the nearest abortion clinics in Salt Lake City.
Even if McCormack did make it to Salt Lake City, she would have had to spend hundreds of dollars for the procedure. McCormack decided to take a cheaper option, taking five abortion pills her sister had ordered off the Internet, it was alleged.
McCormack later was questioned by Pocatello police officers, who had received a tip that a woman was keeping a fetus in a box on her back porch, according to court records.
On May 17, 2011 Bannock County prosecutor Mark Hiedeman charged McCormack with the felony of an unlawful abortion, under Idaho's abortion law.
Just over three months later, a magistrate judge dismissed the case at a preliminary hearing.
Later that year, McCormack and her attorney-physician Richard Hearn asked a federal judge to enjoin Hiedeman from pressing charges under the regulations.
Hearn, an attorney at Pocatello firm Racine, Olson, Nye, Budge & Bailey, intervened after McCormack filed suit.
Two statutes under Chapter 6 of the Idaho Code placed restrictions on pregnant women during the first and second trimester, while a third under Chapter 5 of the code, Idaho's Pain-Capable Unborn Child Protection Act, effectively bans abortions after 20 weeks of pregnancy.
Under the regulations, a woman convicted of an "unlawful abortion" faces a $5,000 fine or up to 5 years in state prison.
Idaho physicians may be criminally charged for prescribing FDA-approved abortion medications to women through the second trimester of pregnancy, the plaintiffs said.
In March 2013, Chief U.S. District Judge B. Lynn Winmill found that under U.S. Supreme Court precedent, the regulations are unconstitutional
Finding that the "purpose of the ... [law's] ... categorical ban is to protect the fetus - not the mother," Winmill ruled that that the statute "embodies a legislative judgment equating viability with twenty weeks' gestational age, which the Supreme Court expressly forbids."
But Idaho Deputy Attorney General Clay Smith on Friday morning urged the court to reverse.
Arguing for Stephen Herzog, Hiedeman's successor as Bannock County prosecuting attorney, Smith said McCormack's undue burden challenge was "plainly" moot in light of the magistrate judge's dismissal of her case.
Smith challenged Winmill's finding that the regulations are unconstitutionally vague, arguing in his brief that they protect women and ensure that that physicians performing abortions "adhere to the reasonable standard of professional care."
Ninth Circuit Judge Kim Wardlaw was not convinced that McCormack's claims were moot. Though Smith had argued that Hiedeman had granted immunity to the plaintiff, she noted that Herzog "could change his mind at any time," and to reinstate the charges, within the 5-year statute of limitations.
Smith tried to shift the focus to Hearn. As the Idaho court's order noted, Hearn is a practicing attorney who has not practiced as a medical doctor since 1997, and did not perform abortions when he practiced.
Smith 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."
In his brief, Smith argued that there is "undisputed evidence" that second-trimester abortions should be performed in hospitals because of the risk of death or injury to women because of the "increased fetus size."
"Under these circumstances, Hearn does not adequately represent the interests of his putative Bannock County patients for third party standing purposes," Smith wrote.
When Richard Hearn stepped forward to argue his case, he was almost immediately challenged by Senior U.S. District Judge Donald Walter, who appeared via video link-up from Louisiana.
Walter asked Hearn why it's an "undue burden" for a woman to go to hospital for an abortion during the second trimester.
Taken off guard, Hearn replied: "The burden is that a woman would need to be admitted to the hospital to have an abortion that she could safely have outside the hospital."
Walter's tinny voice echoed through speakers: "Is there any reason to believe she couldn't get to a hospital?"
Hearn said that for McCormack, and other low-income women, getting to a hospital is "prohibitive." Some don't have insurance, Hearn said, and Medicaid does not cover abortions in the state.
Walter was not satisfied. "Tell me what the burden is," the judge pressed.
Hearn countered that that are no physicians in Bannock County who provide medical abortions. That caused the judge to take pause.
"Is that in the record?" Walter asked.
"Yes," Hearn said, letting the silence hang.
"There are no doctors providing medical abortions in Bannock County. One doctor, myself, has asked to," the attorney continued. "No doctors are providing - that is in the record - second trimester or first trimester abortions in Bannock County or southeast Idaho. Ms. McCormack had to go to Salt Lake City in order to have an out-patient abortion in Utah," the attorney said.
"If asked" Smith and the Idaho attorney general would "concede that not one of these statutes that we're talking about is constitutional," Hearn added.
"But unconstitutional statutes, just like unloaded guns, can still threaten people that they're pointed toward. At least until it's known that the statute is unconstitutional, the doctors and women in Idaho will have these statutes pointed toward them by prosecutors," Hearn said.
Further, he said, the attorney general's office, including Smith, had warned the Idaho Legislature that the Pain-Capable Unborn Child Protection Act was unconstitutional.
As he made his case, Hearn grew quite animated, waving his hands, his voice straining.
"Why don't you calm down a little bit, you're liable to have a heart attack," Judge Harry Pregerson quipped.
"At my age that's certainly true, your honor," Hearn replied.