By Dave Andrusko
Over the past month, NRL News Today has carried stories about Arizona’s pro-life law banning abortion at the point when the unborn baby can feel pain which the federal 9th Circuit Court of Appeals struck down in May (see “9th Circuit panel strikes down Arizona abortion ban”).
We return to Arizona’s 2012 “Mother’s Health and Safety Act” because the Center for Reproductive Rights (CRR) has filed a brief with the Supreme Court maintaining not only that the law is unconstitutional but also that the Supreme Court should not take up the case as requested by the state of Arizona, the attorneys general of sixteen states, and three prominent disability rights organizations—the Jérôme Lejeune Foundation USA, Saving Downs, and the International Down Syndrome Coalition.
As reported by Howard Fischer, for Capitol Media Services, CRR’s Janet Crepps acknowledged that ten other states have passed similar protective laws but added that this is the first one to reach the High Court. As summarized by Fischer, Crepps (the lead attorney for a legal team that also includes the ACLU) took the customary pro-abortion line–both that the Supreme Court has never authorized a ban on abortions prior to viability and that there is not scientific evidence that an unborn child can experience pain by 20 weeks gestation.
Contrast that, first, with the brief filed October 30 by the 16 attorneys general. The brief calls on the High Court to consider overturning the three-member 9th Circuit Court of Appeals panel ruling which reversed a federal district court opinion that had upheld the statute. That lower court found a “compelling state interest” in protecting the lives of unborn children capable of feeling pain.
The brief cites numerous studies demonstrating that
“A growing body of evidence suggests that an unborn child can suffer pain by twenty weeks’ gestation. Scientific literature has shown that a fetus at this stage has the human attributes necessary to feel pain.”
Additionally, the brief cites studies showing that by twenty weeks unborn children have pain receptors throughout their bodies and possess a developed brainstem and thalamus that “permit the brain to receive, react to, and process pain.”
Scientific studies are cited which used real-time ultrasound to observe unborn children at twenty weeks reacting to painful stimuli by exhibiting complex movements indicative of pain.
The brief also points to studies which show twenty-week unborn children responding to painful stimuli with rapid movement, breathing, and cardiovascular changes accompanying a hormonal stress response.
Also included are studies indicating a correlation between painful stimuli in utero and a child’s long-term neurodevelopment resulting in altered pain sensitivity and developmental disabilities later in life.
Seeking the High Court’s guidance on this issue, the State Attorneys General point out that the Court has yet to address the state’s interest as it relates to the issue of the pain of the unborn child. Building on Supreme Court precedent (“Gonzales v. Carhart” ) when it upheld the Partial-Birth Abortion Ban Act, the brief states that States have the right to act even when some dispute the medical and scientific evidence.
“That is especially true here— where even the mere risk of substantial pain is unworthy of a society valuing the dignity of all circumstances of life,” the brief contends.
Then add to that the brief introduced on behalf of the Jérôme Lejeune Foundation USA, Saving Downs, and the International Down Syndrome Coalition by the Bioethics Defense Fund. The brief asked the High Court to allow Arizona to enforce its ban on abortions at 20 weeks as a necessary safeguard against “postnatal eugenics.’” (The brief can be read at bdfund.org/wordpress/wp-content/uploads/2013/10/FILED-AmicusLeJeuneSDiDSC-BDF.pdf.)
The brief argues that the “law reflects Arizona’s interest in limiting abortion of pain-capable unborn children.” Moreover
“Physicians challenging the law confirm that the vast majority of disability-selective abortions occur after twenty weeks gestation, and amici organizations report that this is due to fear, lack of supportive information, and often pressure from misguided medical professionals.
“This disability rights amicus brief highlights Arizona’s additional interests in protecting the integrity and ethics of the medical profession from engaging in eugenic decision making, and by disfavoring discriminatory abortion and even proposals for infanticide of unborn children identified as having a disability, in accord with the Americans with Disabilities Act and other federal law.
“The brief explains that the U.S. Supreme Court’s abortion jurisprudence has not and should not protect disability-selective abortions.
“The brief explains that the Planned Parenthood v. Casey opinion affirming Roe v. Wade was premised on a so-called right to decide ‘whether to bear or beget a child,’ but that the U.S. Ninth Circuit panel erroneously broadened that opinion to give constitutional protection to the decision whether to bear or selectively abort this particular child based on a prenatal diagnosis of disability.
“The dignity of a child does not change with a diagnosis of Down syndrome, cystic fibrosis, spina bifida, or any other health condition, as recognized by numerous U.N. resolutions.”