9th CIRCUIT INVALIDATES IDAHO’S 20-WEEK ABORTION BAN:  The court determined, in McCormack v. Herzog, that banning abortions at 20 weeks violates the viability line drawn by the Supreme Court in Planned Parenthood v. Casey. The Ninth Circuit panel concluded:

The Supreme Court reaffirmed in Casey that an undue burden exists if the purpose or effect of a provision of law places a substantial obstacle in the path of a woman seeking an abortion before the fetus obtains viability. Casey, 505 U.S. at 846. In Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 64 (1976), the Court further explained that “it is not the proper function of the legislature or the courts to place viability, which essentially is a medical concept, at a specific point in the gestation period.” Because § 18-505 places an arbitrary time limit on when women can obtain abortions, the statute is unconstitutional.

As I noted in an earlier post, the Ninth Circuit similarly ruled Arizona’s 20-week abortion law unconstitutional in Horne v. Isaacson, so this decision isn’t all that surprising.  What is interesting, however, is that the House of Representatives recently passed a similar 20-week ban, which has its own unique constitutional problems, since it is questionable whether Congress has the power, through the Commerce Clause, to regulate abortions.

To avoid the Casey viability issue, States should simply ban abortions after 24 weeks instead. Congress should stay out of it.