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Ruling on Fetal Pain-Abortion Ban Could Lead to Supreme Court Battle

by Steven Ertelt | Boise, ID | LifeNews.com | 3/7/13 4:09 PM

State

An Idaho judge has struck down the law the state of Idaho approved that bans abortions after 20 weeks of pregnancy based on the scientific evidence showing unborn children feel pain.

Officials with the National Right to Life Committee, who have pushed these pro-life abortion bans in other states, welcome the ruling because it provides an opportunity to get to the Surpeme Court and to further water down Roe v. Wade.

A federal district court decision against the Idaho Pain-Capable Unborn Child Protection Act issued March 7, 2013, opens the way to an ultimate consideration by the United States Supreme Court whether mounting medical evidence that unborn children are capable of feeling pain supports a compelling state interest allowing protection of such children from abortion, the group told LifeNews.

“Unborn children jerk away from painful stimuli, their stress hormones increase, and they require anesthesia before any fetal surgery,” said Mary Spaulding Balch, J.D., director of state legislation for the National Right to Life Committee.

Idaho is one of eight states that have enacted legislation to protect unborn children capable of feeling pain from abortion, but the only one whose law has to date been challenged in federal court.

“We have always recognized that it will take a decision by the Supreme Court to allow expanded protection of unborn children capable of feeling pain, and there are strong indications that five of the sitting Justices would look with sympathy on a law providing such protection,” Balch said. “The next step will be an appeal to the Ninth Circuit Court of Appeals, followed, after its decision, by a request to the U.S. Supreme Court to hear the case.”

A major legislative priority of the National Right to Life Committee, the Pain-Capable Unborn Child Protection Act first made headlines in 2010 when the Nebraska legislature became the first to enact the bill into law.

The legislation breaks new ground in the fight to protect mothers and their unborn children by acknowledging the large body of scientific evidence showing that unborn children are capable of feeling excruciating pain by at least 20 weeks after fertilization and recognizing that states have compelling interest to protect these pain-capable unborn children. Further documentation and links to the scientific studies can be found at: www.doctorsonfetalpain.com.

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.”

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.

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“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.