Bringing the Pain

by Ramesh Ponnuru

Over at The Public Discourse, pro-life attorney Paul Linton argues against one of the pro-life movement’s bigger legislative initiatives of recent years. He makes two arguments against bills that prohibit abortion after the unborn child may be capable of feeling pain. Only one-half of an argument strikes me as at all persuasive.

Taking them in reverse order: Linton argues that “the unstated (and certainly unintended) message that such a policy communicates is that it is acceptable to kill unborn children when they are not thought to be capable of experiencing pain.” Really? When pro-lifers have sought to tighten laws on infanticide by clarifying that they apply to children who survive attempted abortions, did most people get the message that pro-lifers think it’s ok to kill unborn children who are wholly within the womb? Did they get that message when pro-lifers sought to ban partial-birth abortions, and succeeded? When states have required parental consent for abortions, has it increased the prevalence of the view that abortions for minors are just fine when the parents consent? I just don’t see any reason to think that the communication Linton fears actually occurs.

Linton’s main argument is that the legislation “is unconstitutional.” He also says that it “raises constitutional concerns.” By this what he really means is that it is incompatible with Supreme Court precedents on abortion. But he correctly refuses to concede that those precedents are correct. He refuses even to concede that they are there for good; his article hints at a desire to see them overturned. (He is, after all, pro-life.) So he seems to think that the legislation is actually compatible with the Constitution rightly read. In that case the language he uses — “unconstitutional,” etc. — is mistaken and misleading. Legislators have a moral obligation to obey the Constitution by not introducing legislation incompatible with it. They have no such obligation when it comes to mistaken precedents of the Court.

The only real question Linton raises is tactical. In the course of making his “constitutional” argument he expresses the worry that the Court will, in striking down one of these laws, deal a setback to the pro-life cause by re-affirming Roe v. Wade. I’m not sure how much weight to give that concern. But if there’s a pro-life argument against the laws, that’s it.