Fetal Pain and the Pro-life Strategy

In the last days of July, the Federal District Court in Arizona offered another lift to the pro-life movement when it refused to strike down H.B. 2036, signed into law in April by Governor Janice Brewer.

What brought the bill into court so quickly was a provision to bar abortions after twenty weeks out of a concern for the pain inflicted on the unborn child. In the preamble to the bill, the legislators noted the substantial “medical evidence that an unborn child by at least twenty weeks of gestation has the capacity to feel pain during an abortion.” The Act would then prohibit abortion after twenty weeks “except in cases of medical emergency.”  

The Supreme Court has already indicated that it would be willing to sustain some restrictions on abortion at the point of “viability,” which can be reckoned these days at about 23-24 weeks.

For the partisans of abortion, it was bad enough that the Court has gone that far. But the bill passed in Arizona (along with comparable bills in several other states) threatened to leap over that marker and bar abortions even before the point of viability. 

Hence the move into federal court. In the Gonzales case in 2007, the Supreme Court refused to strike down on its face the federal bill to bar “partial-birth abortions.” The Court would seriously crimp the litigating force of the abortion lobby by making it harder to rush immediately into a court instead of waiting for a real case with a woman actually denied an abortion under the law. 

But in this case, the advocates of abortion argued that a ban on abortion at twenty weeks went well beyond anything permitted by the Supreme Court and therefore it had to be unconstitutional on its face. 

But Judge James Teilborg, a Clinton appointee, rejected that argument. He pointed out that, even with a bar of some abortions at twenty weeks, “the ultimate decision to terminate her pregnancy” still lay with the pregnant woman, and so this arrangement need not run afoul of the lines set down by the Supreme Court.

This figure of twenty weeks has been floated for bills in Congress and the States, and yet it errs on the side of caution in its claims.

Vincent Collins, a professor of anesthesiology, summed up some findings in the mid-1980s:  “Functioning neurological structures necessary for pain sensation are in place as early as 8 weeks, but certainly by 13-1/2 weeks.” 

Professor (and later Judge) John Noonan argued in an essay in 1981 that “a pain mechanism is present in the fetus – possibly as early as day 56.” President Reagan seemed to pick up on Noonan when he remarked on the matter in a State of the Union Address in 1984, saying that doctors “confirm that when the lives of the unborn are snuffed out, they often feel pain, pain that is long and agonizing.”  

Of course, the very fact that Mr. Reagan mentioned the matter was enough to set off a debate among the pundits on television as they sought to show that the Gipper was speaking frontier gibberish. And that in turn triggered hearings in the Senate Committee on the Judiciary in 1985 on the question of fetal pain. 

During those hearings Daniel Robinson made one doctor from the medical school at Yale retreat from the claim that fetuses cannot feel pain before twelve weeks of gestation. As Robinson noted, “pain is surely one of the most primitive of sensations founded in the animal kingdom,” and it did not depend on the “cerebral cortex.”  The “specific pathways carrying ‘pain’ information,” he said, are all “subcortical.”

And yet, we have found of late serious disagreements among our friends about the desirability of moving ahead with the kind of legislation passed in Arizona. One accomplished lawyer worries that the actual banning of abortion before the point of viability goes well beyond anything Justice Kennedy, the swing vote, is likely to tolerate.

The result, this lawyer fears, would be to strike down this law and entrench Roe v. Wade even more firmly. But we have a curious tendency, on the conservative side, not to force people to get more explicit about the premises on which they are acting and claim their rightful name.

Justice Kennedy

Justice Kennedy recoiled from the brutal procedure in partial-birth abortion. To strike down the bill in Arizona would require him now to proclaim his utter indifference to a pain that cannot be denied, the pain of dismembering or poisoning a child in the womb.  

He could get out of that problem by suggesting that the law could be saved by simply requiring that anesthetic be administered to the child. But it is striking – and telling – that the defenders of abortion have never sought to avoid the problem through that evident path, and the reason is obvious:  They will do anything but concede that there is a real child, suffering pain, the victim of these “procedures.”  

Justice Kennedy should be forced to face the same moral embarrassment. Even he may be reluctant to say that he doesn’t care if human beings are killed as long as they are anesthetized. And for all we know, that could be, for Kennedy, the move just too far. 

It could be the moment that finally pushes him off that fence he has strained his art, for so many years now, to straddle.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.