June 7, 2012
In a strategy legal experts say is unheard of, a southeastern Idaho lawyer who is also a physician will be allowed to intervene in a challenge to the state's so-called fetal pain abortion law in a case that could set national precedent.
Rick Hearn is representing a Pocatello woman accused of illegally taking abortion-inducing pills and leaving a stillborn fetus on her porch. And now that Hearn is involved in the case as a plaintiff, in his role as a physician who might want to prescribe abortion drugs in the future, they are mounting the first challenge to the constitutionality of such a law.
Laws banning abortion after 19 weeks of pregnancy, under the premise that a fetus may feel pain around that stage of development, have been enacted in more than a half-dozen states.
Hearn's motion to intervene was granted Wednesday by a federal judge.
"I look forward to resolving the important constitutional questions raised by these laws restricting access to abortion services enacted not only in Idaho but in many other states," Hearn told The Associated Press.
Idaho's attorney general's office declined to comment on the decision Wednesday.
Authorities say Hearn's client, Jennie Linn McCormack, terminated a pregnancy that was more than five months along on Christmas Eve in 2010.
She was charged 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 and the case was dismissed.
But it wasn't a total victory, a judge tossed the charges "without prejudice," meaning she could face charges again at any time.
McCormack is challenging the fetal pain law enacted last year in an effort to avoid future prosecution. The suit also says fetal pain abortion bans violate women's constitutional rights to privacy.
Hearn decided to join the lawsuit after U.S. District Judge B. Lynn Winmill ruled the suit wouldn't get class action status and that McCormack didn't have the right to challenge some aspects of the law because she wasn't currently pregnant and seeking an abortion. Hearn's intervention intends to fill those gaps in their filing.
Bill Horton, a legal ethics expert associated with the American Health Lawyers Association and the American Bar Association's health division, said in April the strategy was unique and unusual.
Hearn hasn't practiced medicine for about six years, and has never performed an abortion. He has said the case isn't about him, but McCormack's right to choose.
The scientific research bolstering fetal pain laws has been the subject of heavy debate, but bans have been gaining momentum among conservative legislators.