The Supreme Court: Evading Fetal Pain

Two weeks ago, those of us in the pro-life movement received some deeply disappointing news. The Supreme Court refused to review the decision of an appellate court that struck down the statute passed in Arizona to bar abortions after twenty weeks. 

That does not mean that the Court will not yet sustain a statute of that kind, passed in another state.  It requires the vote of four justices to grant certiorari, or review a case, and there are four solid pro-life votes on that Court. That meant that even one or two or more of the pro-life judges thought that this was not the moment to test this statute with their colleagues. 

Just why they should hold back is a sober jolt that may induce us to look again at that statute and perhaps notice the problems that came into sight for the pro-life judges.

For several years, there has been the prospect of a federal bill to bar abortions at twenty weeks, and that model has been picked up in the states as well. What has brought forth these bills has been the plan to bar abortions at a point when even the most adamant defenders of abortion cannot plausibly deny that the fetus can feel pain. 

The benchmark of twenty weeks is itself quite conservative, for there are good reasons to think that the offspring in the womb can feel pain long before that.  Back in 1985 the Senate Judiciary Committee held hearings on the subject of fetal pain. Two professors from the Yale medical school argued that the fetus was not likely to feel pain until well into the pregnancy when there was more development of the cerebral cortex. But that view was decisively refuted by Daniel Robinson, then teaching psychology and the neural sciences at Georgetown. 

As Robinson pointed out:

[N]one of the regions now known to be implicated in the initiation and propagation of pain signals includes the cerebral cortex.  All are subcortical, the chief one being the thalamus and the periquaductal gray.
It did not diminish the point to recognize that the reaction to pain is reflexive:  “When our hand falls on a red-hot object we do not engage in syllogistic modes of deliberation in search of an appropriate response.”  But as Robinson also pointed out at the time, the moral objection to the taking of an innocent human life would remain “even if painless methods were developed.”

Nineteen weeks

That point has always been clear to the pro-lifers. And so it has been clear, too, that the main reason for pressing these bills is that the pain inflicted on the child has been a matter of serene indifference to the supporters of abortion. 

When the federal bill on partial-birth abortion was being litigated in New York, Judge Richard Casey Conway put the question to Kanwaljeet S. Anand, a professor of anesthesiology, testifying in opposition to the bill: Had he ever thought of administering an anesthetic to the child killed in this way?  The child, after all, was dangling out of the birth canal, feet swinging, until its head was punctured and the brains sucked out. 

No one, surely, could doubt that the child, in this condition, was feeling excruciating pain. But the professor was taken aback by the question. The question never had arisen because the child simply did not count in the decision, and neither then did its pain. And so no small part of the purpose of these bills on fetal pain has been to jolt the other side into the recognition that they are dealing here with real victims, feeling real pain. 

That has been enough in other instances to inspire sympathy for animals and to  protect them from gratuitous, painful killing. Remarkably, the same sympathy has never been triggered, has never come into play for those small animals who are human.     

But then why wouldn’t four pro-life justices on the Supreme Court vote to review this statute?  My own surmise was that judges might have plausibly feared that Justice Anthony Kennedy, the swing judge, could have taken this line: Legislation restricting a “constitutional right” should be “narrowly tailored,”  and abortion is now a deep constitutional “right.” 

If the concern, he might say, was really with the pain, then the legislature could have sought to deal with the pain without barring the abortion. The legislature could simply have required an anesthetic to be administered. 

After the Supreme Court, with John Roberts and Samuel Alito, upheld the law on partial-birth abortion, it seemed entirely plausible that it could sustain a statute of this kind, marked by the concern for fetal pain. And it still might. But in the meantime some other lessons may be drawn. The pro-lifers will seek to bar certain kinds of abortions in order to plant premises and set the ground for other restrictions coming later. 

But we are always concerned that if we barred abortions, say, after “viability” or later in pregnancy, we would foster the glib assumption that the baby, at that point, is somehow more “human.” The point of caution for us is that the pro-lifers focus on the kinds of restrictions that cannot be detached from the recognition of the child we are seeking to protect. 

We opposed here the pain, but Professor Robinson had it right: we would be every bit as much opposed to the abortion, even if the anesthetic were administered.  

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.