Pro-Lifers Welcome First Fetal Pain Abortion Ban Lawsuit

State   |   Steven Ertelt   |   Sep 1, 2011   |   10:53AM   |   Boise, ID

A leading pro-life organization that is behind the innovative 20-week abortion ban based on the scientific evidence showing that unborn children feel pain during an abortion is welcoming the first lawsuit against it.

Normally, pro-life organizations bemoan the repeated lawsuits the abortion industry files against pro-life legislation that stops abortions and protects women and children. Such lawsuits invariably halt the enforcement of such legislation and prevent their protective effects from limiting and reducing the number of abortions.

In this case, a lawsuit an Idaho woman filed against the state’s Pain-Capable Unborn Child Protection Act The law is a new trend in pro-life legislation that prohibits abortions and places the focus on the unborn child as a victim during the abortion procedure and this suit is the first lawsuit brought against any of the similar laws state legislatures have passed.

The law was put together in part to expand on the Supreme Court’s decision upholding the partial-birth abortion ban Congress passed with the hopes of getting the same five Justices to agree to erode Roe v. Wade further by upholding a ban on abortions after 20 weeks. As a result, Mary Spaulding Balch, J.D., director of state legislation for the National Right to Life Committee, the organization behind the new type of pro-life law, welcomed the lawsuit and said she believes the statute will be upheld at the Supreme Court.

“We are confident that the Supreme Court will ultimately agree and will recognize the right of the state to protect these children from the excruciatingly painful death of abortion,” she said.

Balch also said the fact that the lawsuit was not filed by a top-tier pro-abortion organization with highly-paid attorneys makes it so the case may not be as effective as if Planned Parenthood or the Center for Reproductive Rights of the ACLU had brought it.

“I suspect her case is not what pro-abortion attorneys had in mind when they threatened to challenge one or the other of Unborn Child Pain Protection laws passed in the last year,” she explained. “Pro-abortionists are looking for a ‘hard case’ to challenge these laws, which typically means a baby they say is ‘born dying.’ This woman did not wish to be pregnant and took an abortifacient that even pro-abortion organizations do not recommend for a baby this advanced.”

The lawsuit also calls attention to the subject of the legislation — namely that unborn children feel pain. As such, the lawsuit and the media attention it will receive, aids pro-life advocates in educating the public about how abortion hurts and, ultimately kills, unborn children. In passing the law, the legislature determined that there is substantial medical evidence concluding that unborn children are capable of experiencing pain and that the state has a compelling interest in protecting these pain-capable children — something Balch noted.

“Unborn children recoil from painful stimuli, their stress hormones increase when they are subjected to any painful stimuli, and they require anesthesia for fetal surgery,” she said.

Balch pointed out that a significant number of scientific studies support the state’s conclusion that unborn babies are capable of feeling pain by twenty weeks (20) weeks after fertilization. On average, 18,000 abortions are performed every year in the United States on these pain-capable children, including at some Planned Parenthood clinics.

The complaint in the case claims that the law fails to contain a constitutionally acceptable exception allowing for an abortion if necessary to preserve the health of the mother. That contention is rebutted by Dr. Sean Patrick Kenney, M.D., a board certified obstetrician/gynecologist, and assistant clinical professor at Creighton University School of Medicine in Omaha, Nebraska. He hails from the state that become the first to pass a Pain-Capable Unborn Child Protection Act.

“The language of the law makes fully adequate provision for those rare cases, probably occurring no more than 1-2 times per 5,000 births, when medical complications require premature delivery or abortion of an unborn child after the stage at which the child is capable of feeling pain,” said Dr. Kenney.

Jennie Linn McCormack, a 33-year-old Pocatello resident, is behind the lawsuit and she brought it because she faced prosecution for engaging in a self-abortion using an abortion drug she purchased off the Internet.

McCormack’s attorneys brought a class action lawsuit against an older law, from 1972, that makes it a crime for a woman to self-abort her own pregnancy. McCormack was charged under that law but the charge was later dismissed due to lack of evidence. The lawsuit claims the law discriminates against women living in rural Idaho who don’t have easy access to urban-based abortion facilities.

Court documents Reuters cited show McCormack, a mother of three, didn’t want to drive to Salt Lake City for an abortion and she ordered the mifepristone and misoprostol pills that combine to form the RU 486 abortion drug, off the Internet.

Richard Hearn, her attorney, told Reuters that the lawsuit covers the Pain-Capable Unborn Child Protection Act, even though it was not in place at the time of her abortion, because he contends it sets up similar barriers to legal abortions.

The case is McCormack vs. Hiedeman, 4:11-cv-00397, and it seeks to prohibit state prosecutors from charging other women under the 1972 law and abortion practitioners under the fetal pain-based abortion ban.

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.

“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.