Defending Fetal-Pain Laws

by Michael New

Last week, a majority of House members voted in favor of the D.C. Pain-Capable Unborn Child Protection Act which would have effectively banned abortions after 20 weeks of gestation in the nation’s capital. In response, the Washington Post ran an op-ed last Thursday by Harvard Law Professor I. Glenn Cohen entitled “The Flawed Basis Behind Fetal-Pain Abortion Laws.” Cohen attempts to make the case that these laws — which have been enacted in approximately nine states — are based on dubious science.

Unfortunately, Cohen’s analysis is flawed. Cohen, like many in the mainstream media, claims science does not support the notion that the unborn can feel pain at 20 weeks. He does his best to portray the debate as being between the scientific community and know-nothing pro-life activists. The Chronicle of Higher Education ran a useful article in the summer of 2011 detailing the debate within the scientific community on this issue. The article cited a number of prominent neonatal and pediatric researchers, none of whom are involved with the pro-life movement, who argue that the unborn can feel pain at 20 weeks.

Cohen also states that even if the unborn can feel pain, the proper remedy would be to provide anesthesia to the unborn. But most abortion clinics do not have the equipment or expertise to supply fetal anesthesia. Requiring them to have a trained anesthesiologist present would doubtless make abortions considerably more costly. Additionally, as Laura Myers, an anesthesia researcher at Harvard Medical School has pointed out, the specialized centers that do fetal surgery have no experience providing fetal anesthesia during an abortion. So a procedure would be experimental and would inevitably carry risks for the woman, including infection and uncontrolled bleeding.

Even though Cohen’s critique of fetal-pain laws is flawed, he does get something right in his editorial. Fetal-pain laws are a shrewd strategy for the pro-life movement. The Supreme Court has ruled that preserving fetal life after viability constitutes a compelling state interest. As such, states are allowed to restrict abortion after 23–24 weeks into pregnancy — albeit with a very broad health exemption. However, the Supreme Court has never ruled that viability is the only compelling interest that could justify protecting the unborn.

Pro-lifers are hoping courts will find that preventing pain to the unborn is a compelling state interest. Alternatively, even if courts do not rule that preventing pain to the unborn is a compelling interest by itself, they could rule that it becomes a compelling interest when combined with the state’s interest in preserving fetal life before viability. Fetal pains laws thus have the potential to create another legal avenue to defend the unborn. Furthermore, abortion-rights groups often claim these laws are unconstitutional, but have been very reluctant to challenge them in court. It seems likely they too realize that fetal pain laws are a shrewd legal and political strategy for the pro-life movement.