Federal Judge Strikes Down Idaho 20 Week Abortion Ban As Unconstitutional

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Idaho women won a victory for their reproductive rights on Wednesday when U.S. District Judge B. Lynn Winmill struck down the state’s 20 week ban on abortion. Idaho Republicans pushed SB 1165 into law in April 2011 citing dubious claims that fetuses can feel pain at 20 weeks of pregnancy.

According to Reuters, Judge Winmill ruled that “Here, an outright ban on abortions at or after 20 weeks’ gestation places, not just a substantial obstacle, but an absolute obstacle, in the path of women seeking such abortions.”


“In another portion of his ruling, Winmill said Idaho’s restriction of late-term abortions to those performed in hospitals was unconstitutional because it could effectively limit the use of so-called abortion pills, widely known as RU486, that allow women to end their own pregnancies at home.

“The question is not limited to whether the hospital-only requirement substantially burdens a woman’s right to choose a medical abortion in her second trimester. Instead, the question is whether the hospital-only requirement substantially burdens a woman’s right to choose any type of second-trimester abortion. The Supreme Court has twice answered this question, ‘yes,'” Winmill wrote.”

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Wednesday’s ruling marks the first time a 20 week abortion law has been deemed unconstitutional by a federal judge, giving hope to women across the country that similar bans in Indiana, Kansas, Oklahoma, Arizona, Alabama, Nebraska, and Arkansas will eventually be overturned as well.

Anti-abortion activists claim such bills are necessary because they allege that fetuses feel pain at 20 weeks, but their claim is roundly disputed by science.

The Journal of the American Medical Association has found that fetal pain is unlikely to occur before the third trimester. Furthermore, the New Scientist reported on the findings of the Royal College of Obstetricians and Gynecologists in England and summarized their conclusion as follows:

“The report concludes that fetuses under 24 weeks must be pain-free, because at that age the wiring doesn’t exist to send pain signals from nerves around the body to the cortex, the area of the brain where pain is experienced. At which later point such connections form is unknown, so analgesia should still be considered after 24 weeks, the RCOG says.”

Clearly, there is no scientific justification for 20 week abortion bans. The real reason why conservatives are pushing such legislation is because they seek to force their religious beliefs on all Americans, which violates religious freedom as protected by the Constitution. Such legislation also violates women’s privacy as protected by the Due Process Clause. The Supreme Court made that ruling in the 1973 Roe v. Wade decision and further established that states cannot ban abortion until fetuses become viable outside of the womb at about 24 weeks. The Court has consistently upheld Roe in other cases. So science and court precedent are against 20 week abortion bans.

The Idaho ruling came on the same day that Arkansas passed an even stricter 12 week abortion ban into law. And Texas is now also considering a 20 week ban. An appeal of Winmill’s ruling will likely be filed, which could eventually lead to a showdown in Supreme Court. The right to have an abortion is safe in Idaho for the time being. Only time will tell if women in other conservative states will be able to say the same.