By Dave Andrusko
The Arkansas Senate today joined the House of Representatives in overwhelmingly voting to override Gov. Mike Beebe’s veto of the Pain-Capable Unborn Child Protection Act. Arkansas joins Alabama, Georgia, Idaho, Kansas, Louisiana, Nebraska and Oklahoma in enacting this important initiative of National Right to Life.
The bill—HB 1037—takes effect immediately.
“The Arkansas Legislature has voted to end the killing of unborn children at an age when they are capable of experiencing excruciating pain at the hands of abortionists,” Rose Mimms, Arkansas Right to Life Executive Director, told NRL News Today. “In a clear, unmistakable voice, first the House, then the Senate objected to Gov. Beebe’s support of elective, non- therapeutic abortion at any time for any reason using any method–even when the human sensation of pain is at its greatest level–in procedures that pull their tiny body apart limb by limb.”
Medical evidence has established that the unborn can feel pain by the 20th week, if not earlier. (See www.doctorsonfetalpain.)
The vote in the House on Wednesday was 53-28. Today’s Senate tally on HB 1037 was 19-14.
In urging the House to override Beebe’s veto, lead sponsor State Rep. Andy Mayberry told his colleagues, the Associated Press reported, that “This is not just any regular bill. It’s one that has an eternal impact on each of us and to those children.”
As NRL News Today explained on Wednesday, Beebe’s veto message focused on three areas.
First, there was a dispute over whether the unborn can feel pain at 20 weeks. For starters, if the law said the unborn could experience pain five seconds before birth, someone would “dispute” that. More directly, the contrary “evidence”—such as it is—is old and outdated.
Beebe also cited the cost of defending the law in court. According to the Associated Press, “The American Civil Liberties Union of Arkansas has said it would likely sue if it went into effect.” Pro-abortionists have been muttering that for several years. In fact, they have chosen not to choose that battlefield on which to contest.
Third, Beebe argues the law runs head on against prior Supreme Court jurisprudence on abortion, particularly issues related to fetal viability. That can be answered in two ways.
First, the justices have never addressed the issue of an unborn child’s pain. In 1973 when the justices of the Supreme Court handed down Roe v. Wade, it is safe to say they knew nothing about fetal pain. If/when they do so, it would be a case of “first impression,” as lawyers put it.
Second, the High Court has frequently talked about “a compelling state interest” in the unborn child. Recognizing a compelling state interest in a 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 the 2007 case of “Gonzales v. Carhart,” although it made no distinction based on viability. As Justice Anthony 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.”