On Friday, May 29, 2015, the 9th Circuit U.S. Court of Appeals ruled unconstitutional multiple provisions of Idaho law regulating abortion. See McCormack v. Herzog, No. 13-35401 (9th Cir. May 29, 2015). The three judge panel (two Democratic appointees and one Republican appointee) unanimously ruled that U.S. Supreme Court precedent barred the following Idaho laws:
- Idaho Code § 18-505, which prohibits abortions of fetuses of twenty or more weeks post-fertilization, was found facially unconstitutional because the law categorically bans some abortions even before the fetus has attained viability. The court stated, “[b]ecause § 18 505 places an arbitrary time limit on when women can obtain abortions, the statute is unconstitutional.”
- Idaho Code § 18-608(2), which requires that all second-trimester abortions occur in a hospital, was also found facially unconstitutional. The U.S. Supreme Court has twice addressed this issue and found such requirements to constitute an undue burden on a women’s ability to obtain an abortion.
- Idaho Code § 18-608(1), which requires, among other things, that abortions during the first trimester take place in a medical office that is “properly staffed” and that the responsible physician make “satisfactory arrangements” with an acute care hospital in case of complications or emergencies in conjunction with Idaho Code § 18-605 was found unconstitutionally vague.
As a result of the decision, abortions may be performed by a licensed physician in Idaho past the twenty week mark up to the point of viability. Second-trimester procedures need not be performed in a hospital. The remaining laws affecting abortions in Idaho remain unaffected. For example, third trimester (defined as the portion of the pregnancy after which the fetus becomes viable) abortions may only be performed in a hospital if the attending physician and a consulting physician determine an abortion is necessary to save the mother’s life or, “if not performed, the pregnancy would terminate in birth or delivery of a fetus unable to survive.” I.C. § 18-608(3). All procedures must still be performed consistent with the standard of care and only upon obtaining the patient’s informed consent. Parental consent is still required for minor patients. I.C. § 18-609A. “Partial-birth abortions” are still prohibited. I.C. § 18-613.
20 week abortion ban legislation has been passed in at least a dozen states and the U.S. House of Representatives passed similar legislation on May 14, 2015. Even if that legislation passes in the Senate, it will likely be vetoed by President Obama.
In 2013, the 9th Circuit also ruled that a 20 week abortion ban in Arizona was unconstitutional. The U.S. Supreme Court declined to hear a challenge to that decision. However, with the increasing number of states and the federal government attempting to pass similar bans, the Supreme Court could decide to hear an appeal.