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Judge Stops Georgia Fetal Pain-Based Abortion Ban After ACLU Suit

by Steven Ertelt | Atlanta, GA | LifeNews.com | 12/26/12 2:06 PM

State

A judge has temporarily stopped a new pro-life law in Georgia from being enforced while a lawsuit from the ACLU continues against it.

The ACLU is trying to take down the Georgia law that would ban abortions after 20 weeks of pregnancy based on the scientific evidence showing unborn children feel pain at least at that point in development, if not sooner.

The bill, which Governor Nathan Deal signed, made Georgia the seventh state to adopt such a law. None of those measures has been successfully challenged in court but the ACLU hopes to overturn it.

Fulton County Superior Court Judge Doris Downs heard from the state and attorneys for the pro-abortion group on its request to block the pro-life law from taking effect on January 1. Now she has decided to prevent enforcement of the law until she can issue a ruling on the merits of the lawsuit.

As AP reports:

The American Civil Liberties Union of Georgia filed a lawsuit on behalf of three obstetricians challenging the law’s constitutionality. The lawsuit says the exceptions are too narrow and that doctors could face prison even when they are treating patients “in accordance to the best medical judgment.” The ACLU also says the law violates the state’s privacy protections as provided for in the state constitution.

ACLU lawyer Alexa Kolbi Molinas argued that the law should be barred from taking effect Jan. 1 because it would cause “irreparable harm” to the health, lives and well-being of the doctors’ patients. She also said the law allows the state to intrude into the most private and intimate details of patients’ personal lives by allowing district attorneys seemingly unrestricted access to medical records.

The state argues that blocking the law from taking effect as scheduled would harm the state by going against the will of the General Assembly. Nels Peterson, a lawyer for the state, also argued that the ACLU’s claims about the law allowing the state to intrude into patients’ personal lives are unfounded because a Georgia statute on the books for nearly 40 years has already given district attorneys the rights in question and hasn’t given rise to any complaints.

Georgia Right to Life president Dan Becker applauded passage of the measure and said it could very well save the lives of more than 1,000 unborn children who die annually from such abortions in his state. The state’s current law allows abortions for almost any reason throughout all nine months of pregnancy.

Becker thanked Rep. Doug McKillip (District 115), who sponsored the bill, and many other legislators who tried to maintain the original language.

“This was an intense and highly emotional debate,” Becker said, “and I am grateful to Lt. Governor, Casey Cagle, and House Speaker, David Ralston, for their efforts to protect the unborn.”

Becker said pro-abortion lawmakers frequently used false information to make it appear unborn children do not feel pain during an abortion or are not capable of feeling pain during pregnancy.

“It was truly disheartening to witness the lengths to which the abortionists would go,” Becker said, “they ignored the horror of abortion, dismissed proven scientific evidence and in some cases resorted to outright slander in making their case.”

Groups like the ACLU and Planned Parenthood made defeat of this legislation a priority were pouring money into Georgia to make it happen. But 49% of late-term abortions in Georgia are performed on women who come from other states. If this bill failed, pro-life groups worried Georgia will be known as the “late term abortion capitol of the South.”

Nebraska, Alabama, Idaho, Indiana, Kansas and Oklahoma have already approved similar bills and other states are considering them.

The model Pain-Capable Unborn Child Protection Act, drafted by the National Right to Life Committee’s state legislation department, protects the life of the unborn child at the point that they 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.”

The legislation has also been introduced in Congress with the intent to protect unborn children in the District of Columbia who are able to feel pain during an abortion.

“Medical science has changed over the last forty years,” says NRLC legislative attorney Mary Spaulding Balch. “Accordingly, elected officials across the country are looking at new medical advances and recognizing that our laws need to step into the future as we continue to learn more about the development of the unborn child.”

The most recent survey estimated that 1.5% of the 1.2 million annual abortions in the United States are performed on children at 19 weeks after fertilization, or older. That amounts to more than 18,000 abortions annually.

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.

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