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Fetal pain and 20-week abortion bans

The New York Times has been doing some great reporting on reproductive politics lately. There is a lot of material to work with (!) but the paper has been great at getting behind the surface of events and providing context and analysis.

Speaking of which: The NYT published a story today on the pro-life push to use the theory that fetuses feel pain before the point of viability to drive legislative bans on abortions at 20 weeks and beyond.

What is accomplished by a 20 week ban based on the theory of fetal pain?
  1. This kind of ban largely meshes with public opinion. While these bans tend to not allow abortions that threaten the "health" of the pregnant woman, they do allow for abortions after 20 weeks that threaten the "physical" "life" of the pregnant woman. (The U.S. House version, the Pain-Capable Unborn Child Protection Act (PCUCPA) also has a rape and incest exception.) As long as women who have life-threatening pregnancies can have abortions at this stage of the gestational process, most Americans are not going to raise a fuss. 
  2. It sells the humanity of the fetus, which pro-lifers think will help win the long-term hearts and minds battle over abortion. 
  3. It sets up the public and legislators for bans even earlier in the gestational process: Legislators, judges, and the voting public come to accept the idea that fetuses feel pain at X weeks (even if scientists do not), and accept a ban pegged to X weeks. Then, in a year or two, pro-life activists push the idea that the science now indicates that fetuses feel pain at X-2 weeks, so a ban pegged to X-2 weeks makes more sense. And on and on. 
  4. It messes with the doctrinal structure of Roe and Casey. The Supreme Court already broke the jurisprudential ice in Gonzales v. Carhart (2006), when they upheld the federal partial-birth abortion ban, which (in my opinion) just does not fit with how the Court had been analyzing abortion laws since 1973 (with a few reversed exceptions). Getting a 20-week ban through the court system in tact would allow the Roe/Casey doctrine to be pushed aside bit by bit, law by law. 
There are several problems with the 20-week/fetal pain laws. For example:
  1. Most scientists do not conclude that fetuses feel pain until much later in the gestational process. Which is kind of central to the whole question. 
  2. Doctors who perform the rare late-term abortion already take the precaution of killing the fetus first before performing the abortion procedure. (This is assuming, which I think is a quite reasonable one, that most abortion doctors performing late-term abortions are not criminals or monsters like Kermit Gosnell.) Note, however, that these abortions are late enough that doctors are hedging against the possibility of fetal pain. Second-trimester "dilation and evacuation" (D&E) procedures are generally not preceded by an anesthetizing or killing of the fetus before termination, because, as noted, the science of fetal development does not indicate its use. 
  3. If pro-life advocacy of a 20-week ban based on fetal pain is driven by concern for the fetus, then why is there a rape and incest exception in some of the proposals? Do fetuses conceived as a result of sexual assault not feel pain at 20 weeks? And, in the case of the federal PCUCPA, why are doctors not legally directed to provide fetuses pain-saving drugs when abortions after 20 weeks are legally permitted? 
  4. Regarding the proposal to ban 20 week-and-late abortions under federal law: Under a standard contemporary conservative reading of the Constitution, the federal government does not have the constitutional authority to pass a general ban on late-term abortions. This is an area of traditional state regulation. 

Article in The New York Times (August 1, 2013): Theory on Pain Is Driving Rules for Abortions


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