By Terry Baynes
(Reuters) - When a federal judge on Wednesday struck down an
Idaho law that banned most abortions after 20 weeks of
pregnancy, lawyer Richard Hearn scored a double victory.
In an unusual maneuver, Hearn, who is also a physician, had
intervened in the case as a plaintiff in June. Hearn made the
move after the court found that his client, a woman accused of
illegally taking abortion-inducing drugs, lacked standing to
challenge the law since it only penalized doctors who perform
U.S. District Judge B. Lynn Winmill on Wednesday found that
even though Hearn had never performed an abortion, his stated
intention to prescribe abortion-inducing drugs in the future
gave him grounds to challenge the law.
"The injury requirement is satisfied by both a credible
threat of prosecution and a potential chilling effect on Hearn's
medical practice," Winmill wrote.
As a result, Hearn could assert the rights of women seeking
an abortion, Winmill found. The ban, he wrote, violated a
woman's constitutional right to an abortion up until the point a
fetus can survive outside the womb, around 22 to 24 weeks into
the pregnancy, under U.S. Supreme Court rulings.
"I am very pleased, and that may be an understatement," said
Idaho is one of at least eight states to pass a late-term
abortion ban based on controversial medical research suggesting
that a fetus starts to feel pain at 20 weeks. Winmill was the
first judge to strike down a fetal pain ban on its merits, Hearn
Hearn stopped practicing medicine regularly in 1997,
becoming a full-time attorney. His practice primarily included
civil rights, criminal and personal injury cases when Jennie
McCormack retained him for legal help.
McCormack, an unmarried mother of three, had been charged by
Bannock County prosecutors under a 1972 Idaho law that requires
abortions be performed by a provider at a licensed facility. She
had terminated her pregnancy at around 20 weeks with an
abortion-inducing drug obtained on the Internet. Prosecutors
eventually dropped the charges, but McCormack sued to challenge
several state abortion laws, including the 20-week fetal pain
ban adopted in 2011.
Unable to find any doctors in Idaho willing to perform
abortions as late as 20 weeks to serve as plaintiffs in the
case, Hearn decided that his only option to keep the challenge
to the fetal pain law alive was to step into the suit himself.
READING ABOUT RU-486
He initially was concerned about the potential ethical
conflicts of serving as both plaintiff and lawyer in the same
case, but after consulting with the Idaho Bar and other lawyers
he felt that it was appropriate.
"Because I was intervening for Ms. McCormack's rights, and
not for myself, for example to win money, I was given the green
light," Hearn said. "It would have been much more complicated if
I was trying to win something for me," he added.
Hearn said he saw his intervention in the case as a
technicality needed for McCormack to vindicate her
constitutional rights to a late-term abortion. He lamented the
fact that a doctor, especially a male doctor, had to intervene
on her behalf.
Hearn hired his own lawyer as a precaution in case his
interests ever diverged from McCormack's, he said. But his
lawyer, Jack Van Valkenburgh, did not play an active role. Hearn
argued the case on McCormack's and his own behalf before the
court in December.
As a full-time doctor, Hearn specialized in nephrology, or
kidney diseases, and rheumatology, or autoimmune diseases
involving joints and tissue. Since taking on McCormack's case,
he has read more about RU-486, the abortion-inducing drug, than
he ever would have in medical school, he said.
In order to have standing to challenge the fetal pain law,
he had to say that he would prescribe abortion-inducing drugs if
the Idaho laws were not in place.
"The law only requires that I express a genuine intent to
prescribe these medicines, which I did and do have," he said.
The state did not challenge the sincerity of his intent, Hearn
The state attorney general argued that Hearn could not have
standing simply by saying that he had an intention to perform
medical abortions in the future. He would also need to have a
properly equipped and staffed medical office with arrangements
for emergency care, or privileges at a hospital to claim the
right to perform abortions, the state argued.
But Winmill disagreed, finding that Hearn, as a legally
licensed physician, could prescribe medication to induce
abortions outside clinical settings, and that Idaho's fetal pain
law infringed on his right to practice his medical career.
"I never imagined returning to a medical role through a
lawsuit. Neither did my wife or children," Hearn said.
He said he hoped that the court's latest ruling would
encourage other physicians to readily prescribe drugs for
late-term abortions now that it's legal. But if no other doctor
did, he would have to prescribe them himself.
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