Three states have new laws that ban abortions after 20 weeks of pregnancy based on the scientific evidence showing unborn children have the capacity to feel pain at that point, but abortion advocates may not challenge those laws in court.
The pro-life groups bringing the laws have done so not only because they seek to protect women and unborn children from late abortions but because they sense, based on the Supreme Court’s decision upholding the ban on partial-birth abortions, that the legal door can be opened further to move the high court further down the road of offering legal protection for unborn children in a greater way.
Although Justice Anthony Kennedy is not willing to go along with the perceived four-vote minority of justices who appear likely to overturn Roe v. Wade, he did support reversing a 2000 decision that had the high court previously strike down a Nebraska partial-birth abortion ban and the National Right to Life Committee believes he is open to moving further in a pro-life direction that continues to chip away at Roe.
Surprisingly, when Nebraska became the first state in the nation to approve a fetal pain-based abortion ban, pro-abortion legal groups like Planned Parenthood and the Center for Reproductive Right, both of which are normally quick to fire off lawsuits at other types of pro-life legislation, didn’t budge.
Now that Kansas and Idaho have joined Nebraska with new bans, and other states are considering similar legislation this session, the pro-abortion movement still appears reticent to give the pro-life community what it wants — a legal challenge.
Mary Spaulding Balch, an attorney who is the state legislation director of the National Right to Life Committee, told Politico today, “This is all an explosion, which we think if presented to the court, they would recognize the rights of the fetus. I was surprised it wasn’t challenged, and I would like to see that.”
“This is one that the pro-life movement would like to see before the Supreme Court,” she says. “I do think that this raises a new issue that has not been presented to the court and comes up with information that was not available in 1973 [when the Court decided on Roe].”
But CRR president Nancy Northrup groused to the Politico web site, “We don’t jump just because the anti-choice movement jumps. We’re focused on pursuing cases that ensure that women have access to all abortion services. They’re trying to move the agenda to a small percentage of cases, but we’re not fighting on their turf.”
Gretchen Borchelt, legislative counsel for the National Women’s Law Center, also talked with Politico about the legislation and admitted that it had the potential of overturning the current viability standard the Supreme Court uses with respect to determining the constitutionality of state abortion legislation.
“Viability has always been that line,” she said. “According to the Supreme Court, that standard has always been left to the physician because each pregnancy is different.”
But she admitted the second partial-birth abortion decision, Gonzalez, showed that five justices are willing “to allow these challenges at the edges that wouldn’t formerly overturn the Roe decision.”
That may be why Planned Parenthood in Kansas and Oklahoma has already said it does not intend to challenge the bans in those states. A potential pro-life victory at the Supreme Court would give other states the legal footing on which to continue protecting unborn children.
As drafted by National Right to Life’s state legislation department, the model Pain-Capable Unborn Child Protection Act protects from abortion unborn children who are capable of feeling pain except when the mother “has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert death or to avert serious risk of substantial or irreversible physical impairment of a major bodily function or…it is necessary to preserve the life of an unborn child.”
Continuing the trend among the states in passing pro-life legislation, further action during the state legislative session on the model Pain-Capable Unborn Child Protection Act is expected in Alabama, Minnesota and Oklahoma, among others.
“Over the past several years, we have seen an increasing number of state legislatures concerned with protecting the lives of unborn children and their mothers,” added Balch. “We are encouraged to see the trend continuing this year with passage of laws like the Pain-Capable Unborn Child Protection Act.”
The other problem for pro-abortion groups is that the concept of fetal pain is one that is strongly supported in medical literature and losing the legal argument at the highest court would potentially become a medical loss as well — with that evidence gaining acceptance by the Supreme Court as legitimatizing the fetal pain abortion bans.
The science behind the concept of fetal pain is fully established and Dr. Steven Zielinski, an internal medicine physician from Oregon, is one of the leading researchers into it. He first published reports in the 1980s to validate research showing evidence for it.
He has testified before Congress that an unborn child could feel pain at “eight-and-a-half weeks and possibly earlier” and that a baby before birth “under the right circumstances, is capable of crying.”
He and his colleagues Dr. Vincent J. Collins and Thomas J. Marzen were the top researchers to point to fetal pain decades ago. Collins, before his death, was Professor of Anesthesiology at Northwestern University and the University of Illinois and author of Principles of Anesthesiology, one of the leading medical texts on the control of pain.
“The functioning neurological structures necessary to suffer pain are developed early in a child’s development in the womb,” they wrote.
“Functioning neurological structures necessary for pain sensation are in place as early as 8 weeks, but certainly by 13 1/2 weeks of gestation. Sensory nerves, including nociceptors, reach the skin of the fetus before the 9th week of gestation. The first detectable brain activity occurs in the thalamus between the 8th and 10th weeks. The movement of electrical impulses through the neural fibers and spinal column takes place between 8 and 9 weeks gestation. By 13 1/2 weeks, the entire sensory nervous system functions as a whole in all parts of the body,” they continued.
With Zielinski and his colleagues the first to provide the scientific basis for the concept of fetal pain, Dr. Kanwaljeet Anand of the University of Arkansas Medical Center has provided further research to substantiate their work.
“The neural pathways are present for pain to be experienced quite early by unborn babies,” explains Steven Calvin, M.D., perinatologist, chair of the Program in Human Rights Medicine, University of Minnesota, where he teaches obstetrics.