This Sunday, the New York Times ran a hostile article about pro-life efforts to enact fetal-pain laws. Because of the gains that Republicans made in the state legislatures during the 2010 midterm elections, pro-lifers have gone on the offensive. A number of states have eliminated state funding for Planned Parenthood and enacted legislation requiring women to view an ultrasound before submitting to an abortion. However, the most popular piece of pro-life legislation has been fetal-pain laws. Thus far, six states — Nebraska, Idaho, Indiana, Kansas, Oklahoma, and Alabama — have enacted these laws, which protect unborn children after 20 weeks, when there is medical evidence that the unborn can feel pain.
These fetal-pain laws are good pro-life strategy for two reasons. First, like partial-birth abortion in the 1990s, it is politically difficult for pro-choicers to support abortion at a late stage in pregnancy, especially when unborn children can actually feel pain. Secondly, they can provide another legal justification to protect the unborn. Supreme Court jurisprudence has only allowed states to protect the unborn after viablity. Of course, since these viability protections must also contain a broad health exemption, they are very weak. However, if fetal-pain laws receive constitutional protection, that would create another legal avenue to defend the unborn, which might lead to greater legal protections in the future.
Of course, the New York Times argues that the consensus of the medical community is that the unborn cannot feel pain at 20 weeks. They take great pains to portray this debate as one between academic researchers and know-nothing pro-life activists. Of course, they fail to mention that one of the doctors they cite, Dr. David Grimes, is a practicing abortionist who won an award from the National Abortion Federation in 1987. Furthermore, The Chronicle of Higher Education ran a useful article on Tuesday citing 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.
The Times also presents the difficult story of a Nebraska couple, Danielle and Rob Deaver. During a wanted pregnancy Danielle Deaver learned that the lung and limb development of her child had stopped and it had a remote chance of being born alive. Mrs. Deaver wanted to induce labor early to minimize the chance of infection. However, doctors felt that this would be in violation of Nebraska’s fetal-pain law. We do not know all the details of the Deaver’s tragic situation. However, the Times conspicuously fails to mention that these laws do contain exceptions for life and health of the mother. Furthermore, one maternal fetal medical specialist who reviewed the situation questions the decisions made by the physicians. He also feels that an abortion that late in pregnancy would have been against Nebraska law, regardless of whether the Pain-Capable Unborn Child Protection Act had been in effect.
As the pro-life movement gains momentum, abortion-rights supporters are suddenly talking a much better game than they are playing. In the Times article, Nancy Northup of the Center for Reproductive Rights called these “20 week laws blatantly unconstitutional.” Similarly, Caitlin Borgmann a law professor at City University of New York School of law feels these laws are “clearly unconstitutional.” However, even though six states have signed these fetal-pain bills into law, none of them has faced a legal challenge. Northup says they will wait until the timing and circumstances are right. However, supporters of legal abortion are probably wise to proceed cautiously. Justice Kennedy’s opinion in Gonzalez v. Carhart, which upheld the federal partial-birth-abortion ban, has led many to believe he might find constitutional additional legal protections for the unborn. As such, pro-lifers would do well to continue to seize the initiative.
— Michael J. New is an assistant professor of political science at the University of Alabama and a fellow at the Witherspoon Institute in Princeton, N.J.