Paul Linton is a talented and knowledgeable pro-life lawyer. He is also a dear friend. For both of these reasons I am reluctant to disagree with him about pro-life strategy. This, however, is the rare case that requires me to disagree with him.
Paul (and I address him in this manner to evidence our friendship and mutual respect) criticizes my support of Pain Capable Unborn Child Protection Acts on four grounds. First, he argues that these laws are unconstitutional under current U.S. Supreme Court precedent. Second, he claims that the Court, and Justice Kennedy in particular, are not likely to accept the capacity to feel pain as an alternative basis for restricting the right to abortion. Third, he reasons that the right to be protected from painful assaults is less weighty than the right to be protected from lethal assaults. Therefore, he argues, the lesser right is insufficient to sustain a legal prohibition of abortion that the stronger right cannot justify. Fourth, he notes that the right to be free from painful assaults can be adequately addressed by less restrictive means than prohibiting abortions.
Paul is simply wrong as to his first point. The Court has never directly addressed whether preventing the pain of the unborn is an adequate independent basis for limiting abortions. It has, however, repeatedly noted that changes in medical knowledge and technology may require changes in its approach to abortion. In Gonzales v. Carhart, when reviewing the federal partial-birth abortion ban, Justice Kennedy noted that legislatures have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”
Paul believes the Court is unlikely to recognize fetal pain prevention as an independent state interest in the constitutional calculus surrounding abortion restrictions. He is convinced that the harm from the reaffirmation of abortion rights in our judicially-crafted constitution outweighs what he considers the small gain we will have made if these laws are upheld. On this point we also disagree.
I believe a majority of the Court, including Justice Kennedy, is looking for an exit strategy from the cultural combat surrounding abortion. In Gonzales v. Carhart, Justice Kennedy echoed the longstanding critique that Roe had transformed the Supreme Court into “the country's ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.” And earlier this year Justice Ginsburg, the most outspoken defender of abortion rights on the Court, is reported to have said that Roe was mistimed, moving too fast in its usurpation of the political dialogue over abortion that was occurring in the states in the 1970s.
Even if a majority of the Court wants to return the question of abortion to the normal legislative process, some justices are reluctant to be seen as abandoning the field entirely. It is important to remember that Justice Kennedy joined in the plurality opinion in Planned Parenthood v. Casey characterizing access to abortion as necessary to “[t]he ability of women to participate equally in the economic and social life of the Nation.” Upholding Pain-Capable Child Protection Acts allows the Court to make incremental progress toward restoring full state authority over the question of abortion, while retaining control, for now, over restrictions dealing with ninety percent of the abortions in this country.
Unlike Paul, I do not believe judicial recognition of fetal pain is too small a gain to risk reaffirming the general abortion license created by Roe. As Paul notes, the number of lives saved by these acts will be small. The Centers for Disease Control reports that less than 1.3 percent of all abortions occur after twenty-two weeks gestation (i.e. twenty weeks post-fertilization). Research indicates that most women who obtain an abortion at this late stage in their pregnancies have delayed in obtaining a diagnosis of the pregnancy. Some are young, others are old. Many report financial pressures or fear of the abortion as reasons for delaying.
Contrary to the claims of abortion rights activists, women rarely seek abortions after twenty weeks post-fertilization due to the late discovery of fetal malformation or other serious fetal anomalies. In fact, the NARAL Prochoice press release opposing Unborn Pain-Capable Child Protection Acts contains no example of any woman who sought an abortion after twenty weeks post-fertilization (i.e. twenty-two weeks gestation). At least one of the stories, that of Danielle Deaver, appears to be more a tale of medical malpractice than of a medical crisis requiring abortion.
Recognition that abortion causes intense pain to the unborn child is a powerful part of the longer and more complex philosophical and legal arguments that the unborn child is entitled to recognition as a constitutional person.
Just as a ban on sex-based abortions establishes the principle that at least some abortions undermine women’s equality, a ban on pain-inducing abortions establishes that the unborn are the proper subject of state protection. Abortion rights advocates are incapable of explaining why the state is justified in protecting cold-blooded murderers and even a dog from pain, but impotent to protect developing “potential” human life from the painful assault of dismemberment abortions.
This reasoning leads to my response to Paul’s final objection. He argues that recognition of the unborn child’s pain does not legally necessitate that we protect the child’s life. At most, under current legal logic, the existence of such pain merely requires that pain relief be administered, or “cruel and unusual” means of abortion (like partial-birth abortion) be avoided. On this point, he may well be correct. If the Court’s constitutional interpretation prohibits Americans from offering at least as much protection to unborn children as we provide a mass murderer—so be it.
But I think neither a majority of the Court, nor the vast majority of Americans are willing to accept this conclusion, which is why I say “Pass Unborn Child Protection Acts and let’s begin the conversation about the pain of the unborn.”
Teresa Collett is Professor of Law at University of St. Thomas School of Law.