The Pain-Capable Unborn Child Protection Act and the Future of Abortion Jurisprudence

By Mary Spaulding Balch, J.D.

Editor’s note. This article first appeared in National Right to Life News in early 2011. Since then, pro-lifers have passed The Pain-Capable Unborn Child Protection Act in three more states—Oklahoma, Idaho, and Kansas.

It would be difficult to overstate the historic importance of Nebraska’s 2010 Pain-Capable Unborn Child Protection Act, the first state law to present the Supreme Court with the opportunity to bring its abortion jurisprudence into the 21st century. The law is grounded in a moral empathy that resonates with the American people: “You don’t kill unborn children capable of feeling pain.” Basing its conclusion on an enormous body of medical research (literally hundreds of studies), this first-of-its-kind law conservatively sets the demarcation at 20 weeks.

So why, after publicly hinting it was just a matter of time, have pro-abortion organizations not challenged the law in court? Quite probably because pro-abortionists appreciate that when abortion’s brutal realities overcome the gauzy generalities about “choice,” the public opinion needle moves in the direction of life. That is precisely what happened in the long, long debate over partial-birth abortion. Better than most, abortion advocates understand that you don’t need coursework in fetal anatomy to sense that at 20 weeks babies will suffer excruciating pain as they are being torn apart.

Furthermore they understand that the Pain-Capable Unborn Child Protection Act could not have passed had today’s scientific understanding about and public awareness of the unborn child not advanced leaps and bounds from 1973 when the U.S. Supreme Court handed down its infamous Roe v. Wade decision. Sonograms of the once nearly invisible unborn child are now plastered on refrigerators all over the world.

There are ironies galore, but none more stark than this. Pro-abortionists forever tell us that pro-lifers want to “take us back.” In fact what makes the Pain-Capable Unborn Child Protection Act so dangerous to Roe is that it demands precisely the opposite.

Rather than freezing our understanding of fetal development at what was available to the High Court 38 years ago, the law says, “Come, let’s see what we know now that we didn’t know then.” And seeing is believing, which is why abortion proponents are so dead-set against the passage of laws which make it possible for abortion-vulnerable women to see an ultrasound of their unborn babies.

“Informed choice” is the last thing abortion clinic personnel are looking for.

Forty years ago, the unborn child virtually did not exist in medicine. “Fetal medicine” was an oxymoron. Our understanding of pain was so primitive that even a newborn undergoing surgery did so without anesthesia! They received only a paralytic to keep them still.

The use of ultrasound was introduced in the late 1970s. The possibility of literally seeing the unborn child opened the eyes not only of parents but of doctors, allowing them to diagnose problems that heretofore were only known in newborns. The concept of the unborn child as a patient was born. It was the beginning of a subspecialty that we know today as fetal medicine.

With the ability to see this new patient came in utero surgery—the ability to save premature unborn children at earlier and earlier intervals. Once highly experimental, fetal surgery is now a frequent occurrence at several hospitals around the country. As recent as February 8, ABC News Tonight ran an important investigative piece on fetal surgery which is likely soon to become standard care for some conditions such as spina bifida.

We can see in retrospect that two lines of investigation were intersecting. On one axis doctors were observing that when pricked by a needle, even the most premature babies grimaced. On the other axis, physicians saw that unborn children could experience pain, due to the ever-increasing use of fetal surgery. The question arose: at what point in fetal development is the child capable of experiencing pain?

In 2005, congressional hearings were held on the issue of unborn children’s pain. Expert witnesses included Dr. Jean A. Wright and Dr. K.J.S. Anand. Dr. Wright testified that “an unborn fetus after 20 weeks of gestation has all the prerequisite anatomy, physiology, hormones, neurotransmitters, and electrical current to close the loop and create the conditions needed to perceive pain.” Subsequently Dr. Anand, currently a professor of pediatrics, anesthesiology, and neurobiology at the University of Tennessee Health Science Center, said in a document accepted as expert by a federal court, “It is my opinion that the human fetus possesses the ability to experience pain from 20 weeks of gestation, if not earlier, and that pain perceived by a fetus is possibly more intense than that perceived by newborns or older children.”

Is there evidence that the Supreme Court is aware of all this? There is clear evidence Justice Kennedy is. Justice Kennedy has described the gruesome nature of the most common abortion technique used in the second trimester, dilation and evacuation or D & E, in terms that make clear that it would be extremely painful: “[F]riction causes the fetus to tear apart. For example, a leg might be ripped off the fetus … ,” he wrote in the 2007 case of Gonzales v. Carhart. Justice Kennedy used even more graphic descriptions of D&E abortions in his dissent in Stenberg v. Carhart, “The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn limb from limb.”

In Gonzales v. Carhart, the decision upholding the federal ban on partial-birth abortions, Justice Kennedy also dealt with two other issues germane to the Pain-Capable Unborn Child Protection Act. He wrote:

“In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. … It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. … It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.”

What Justice Kennedy for the Court stated to be true with regard to partial-birth abortion—its impact on the mother, and the state’s interest—may equally be applied to those abortions performed when the unborn child is capable of experiencing, and does experience, pain from the abortion technique.

Equally important, Kennedy (widely understood to be the decisive fifth vote in abortion cases) wrote in Gonzales that “it is inappropriate for the Judicial Branch to provide an exhaustive list of state interests implicated by abortion.”

The justices have never addressed the issue of an unborn child’s pain. If/when they do it would be a case of “first impression,” as lawyers put it.

Recognizing a compelling state interest in the unborn child who is capable of experiencing pain would not require the Court to overturn, but only to supplement, its prior recognition of a compelling “state interest” in the unborn child after viability. The federal Partial-Birth Abortion Ban Act was upheld in Gonzales, although it made no distinction based on viability. As Justice Kennedy wrote, “The [Partial-Birth Abortion Ban] Act does apply both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb.”

It is critically important to understand that the interest asserted here is not just one in diminishing or eliminating the unborn children’s pain during an abortion. Rather, it is that the unborn child’s capacity to experience pain is a significant developmental milepost, making the unborn child at that point sufficiently akin to an infant or older child to trigger a compelling state interest.

The stage of development at which the unborn child is capable of experiencing pain is at least as “clear” and arguably more “workable” in comparison with viability. While viability is predominately an extrinsic measurement of the capacity of medical science to sustain the life of a premature infant, the capacity to feel pain is an intrinsic, innate feature of the unborn child at a particular stage of development.

While no one can definitively predict how the majority of the Supreme Court, and in particular Justice Kennedy, would rule on the constitutionality of the Pain-Capable Unborn Child Protection Act, the evolving development of the High Court’s abortion litigation, and particularly its decision in Gonzales v. Carhart, leads us to this conclusion. There may well be receptivity to a well-documented effort to demonstrate the reasonableness of recognizing the reality of fetal pain by 20 weeks post-fertilization, and the justification for acting to minimize it by preventing abortions not necessary to avert death or substantial and long-lasting physical impairment of a major bodily organ from 20 weeks on.

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