By Dave Andrusko
Pro-lifers know we have to hold our breath every time we pass protective legislation. Almost inevitably, the laws are challenged. (See, for example, “Judge issues preliminary injunction against North Dakota pro-life law” and “Federal Judge extends hold on portion of Wisconsin pro-life law.”)
But a key pro-life initiative—the Pain-Capable Unborn Child Protection Act—is now officially the law of North Dakota. Signed by Governor Jack Dalrymple on April 16, it was to take effect today. It did, because it went unchallenged by the usual suspects such as the Center for Reproductive Rights.
North Dakota joins Nebraska, Kansas, Idaho, Oklahoma, Louisiana, Georgia, Alabama, Texas, and Arkansas in enacting laws that say that babies cannot be aborted from the point that compelling medical evidence demonstrates the child can feel pain—20 weeks.
Mary Spaulding Balch, JD, National Right to Life’s Director of State Legislation and architect of the model law, told NRL News Today that “It is hugely significant and shouldn’t be overlooked that a fifth of the states now have the Pain-Capable Unborn Child Protection Act on their books.”
Nebraska holds the distinction of being the first state to pass the Pain-Capable Unborn Child Protection Act—in 2010. Balch recalled an unintentionally revealing quote from Nancy Northrup, president of the Center for Reproductive Rights.
Northrup told the Associated Press at the time, “Courts have been chipping away at abortion rights…this would be like taking a huge hacksaw to the rights.”
“You don’t need coursework in fetal anatomy to know that babies this mature will suffer excruciating pain as they are being torn apart,” Balch said. “People who know nothing about abortion ‘get it.’”
And thanks to great strides in fetal medicine we have moved from the late 1970s—when the concept of the unborn child as patient was born, followed by the beginning of the sub-specialty known as fetal medicine—to fetal surgery on unborn children, which is now a frequent occurrence at several hospitals around the country—to an appreciation that unborn children experienced pain during the surgery—to the regular administration of anaesthesia to the unborn child at around 20 weeks after fertilization.
All this new information—and more—paved the way for legislation to protect these unborn children from the horrific pain inflicted during an abortion.
Balch recently told ABC News that she sensed a deep reluctance on the part of abortion advocates to challenge “pain capable” laws in federal courts, a precursor to a potential hearing at the Supreme Court.
“I’ve been in this movement for over 40 years and it used to be the norm that whenever a state passed a piece of legislation, our opponents would run immediately and get an injunction,” Balch said. “The pain capable laws are the exception.”
She added, “My guess is that they’re as pragmatic as I am, and you have to be able to count to five,” she said. Five is the number of justices that constitutes a majority.
Balch told NRL News Today
“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.”