Pro-Life Groups Should Note Abortion-Fetal Pain Legal Issues

Opinion   |   Paul Linton   |   Feb 9, 2011   |   12:24PM   |   Washington, DC

Yesterday, Mary Balch responded to my article (posted on the Human Life Review’s website) criticizing the National Right to Life Committee’s “Pain-Capable Unborn Child Protection Act,” which would ban virtually all abortions during and after the twentieth week of pregnancy, including abortions of children who are not viable.

Relying upon “new information” regarding fetal pain, Ms. Balch expresses her belief that the Supreme Court would be willing to discard the viability rule laid down in Roe v. Wade (1973)–that the States may not prohibit abortions before viability–and recognize an interest “in protecting these pain-capable children.” That belief is not well founded.

First, the notion that more “information” about fetal development (in this case, the child’s ability to experience pain) would persuade the Supreme Court to abandon the viability rule is naive. The problem with the Court’s rulings on abortion is not a lack of understanding about what happens in an abortion, but an unwillingness to do what is right. Moreover, if the State’s interest in the life of the child will not support a ban on abortions before viability, why would a lesser interest (relating to the child’s ability to experience pain) support such a ban?

Second, Justice Kennedy, who co-authored the Court’s Joint Opinion in Planned Parenthood v. Casey (1992), which reaffirmed Roe’s viability rule, has never even hinted that he would consider abandoning the viability rule. Quite the opposite.

In Stenberg v. Carhart (2000), which struck down Nebraska’s partial-birth abortion ban, Justice Kennedy stated in his dissent: “Nebraska must obey the legal regime which has declared the right of the woman to have an abortion before viability.” And in Gonzales v. Carhart (2007), in which the Court upheld the federal Partial-Birth Abortion Ban Act, Justice Kennedy, quoting Casey, stated in his majority opinion: “Before viability, a State ‘may not prohibit any woman from making the ultimate decision to terminate her pregnancy.’”

Third, the claim that the Nebraska pain bill has “already saved lives” is questionable. Dr. Carhart may not be performing late term abortions in Nebraska anymore, but he is performing them in Maryland. His abortion practice has simply moved from one State to another. And if enough other States pass NRLC’s pain bill, it will be challenged and struck down, resulting in no lives saved in any State.

Fourth, while it is true that, ultimately, the Supreme Court did uphold a partial-birth abortion ban, that was only after a change in the composition of the Court, but the present Court would not abandon the viability rule. That must await further changes on the Court in our favor which, at the present time, are not even foreseeable. Note:  Paul Linton is a pro-life attorney in private practice who has been involved in the pro-life movement for over 20 years. provided space for both attorneys, Mary Balch and Paul Linton, to present their legal views both for and against the Pain-Capable Unborn Child Protection Act — the abortion-fetal pain bills that have passed in Nebraska and are being considered by other state legislatures. The views represent those of the authors alone.