Late last month here at Public Discourse, my friend Teresa Collett defended the National Right to Life Committee’s Pain-Capable Unborn Child Protection Act. Professor Collett makes two arguments: first, that unborn children can feel pain and, second, that the Act is constitutional. I do not dispute the first point, but will argue here against the second: the Act is unconstitutional as it applies to pre-viability abortions.

Under controlling Supreme Court precedent, first announced in Roe v. Wade (1973) and reaffirmed in Planned Parenthood v. Casey (1992), states may not prohibit abortion before viability. But the Pain-Capable Unborn Child Protection Act prohibits abortions one to two weeks before viability. According to current medical practice, an unborn child is normally considered “viable,” i.e., capable of sustained survival after birth with or without medical assistance, some time between the twenty-third and twenty-fourth weeks of pregnancy, which is measured from the first day of the woman’s last menstrual period (LMP). Subject to very narrow exceptions, the Pain Capable Unborn Child Protection Act prohibits abortions during and after the twentieth week post-fertilization, which is the same as twenty-two weeks after LMP. Collett admits that the Act, to the extent it aims to prohibit pre-viability abortions, would appear to run afoul of Roe and Casey. So, if the Act could not be upheld under current constitutional doctrine, what is the basis for believing the Court would not strike it down?

Justice Kennedy’s Opinions

Collett and other supporters of the Act pin their hopes on Justice Kennedy, who, with Chief Justice Roberts and Justices Scalia, Thomas, and Alito,, would make up the majority needed to uphold the Act. But it is remarkable that the Act’s supporters think they could attract Kennedy’s vote, given that he co-authored the joint opinion in Casey that  reaffirmed the viability holding of Roe. Collett believes that Kennedy would uphold the Act’s constitutionality by recognizing a state interest in the unborn child’s ability to experience pain; she points to Kennedy’s passionate dissent in the first partial-birth abortion ban case, Stenberg v. Carhart (2000) (Carhart I), and his majority opinion for the Court upholding the federal Partial-Birth Abortion Ban Act seven years later in Gonzales v. Carhart (2007) (Carhart II). Yet a closer look at Kennedy’s reasoning in these two cases suggests that it is unlikely he would vote to uphold a prohibition on pre-viability abortions, even if he recognized a state interest in recognizing the unborn child’s ability to feel pain.

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Both the state statute struck down in Carhart I and the federal statute upheld in Carhart II concerned an abortion procedure ban, not an abortion ban. Both laws, in Kennedy’s view, left other procedures unaffected. In both his dissent in Carhart I and his majority opinion in Carhart II, Kennedy took great pains to explain why the statutes in question did not affect the legality of the most commonly used second-trimester abortion technique (conventional dilation and evacuation, or D&E, in which the unborn child is dismembered, instead of removed intact). He acknowledged that the statutes would be unconstitutional if they effectively prohibited conventional D&Es. That the prohibition of partial-birth abortion was not an abortion ban, but an abortion procedure ban, was critical to his analysis.

In the second paragraph of his dissent in Carhart I, Kennedy stated, “The Court’s decision today . . . invalidat[es] a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right (emphasis added). Later he added, “Nebraska must obey the legal regime which has declared the right of the woman to have an abortion before viability” (emphasis added). That sentence leaves little room to doubt how Kennedy would view a ban on pre-viability abortions.

Carhart II revealed again Kennedy’s consistent support for a woman’s right to a pre-viability abortion. The first principle of Casey, he stated, is that “before viability, a State ‘may not prohibit any woman from making the ultimate decision to terminate her pregnancy.’” He also noted that the federal Partial-Birth Abortion Ban Act “would be unconstitutional ‘if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’” Thus, even if one assumes that the state has a legitimate interest in regulating abortion at stages of pregnancy when the unborn child can feel pain, that interest is not strong enough to uphold a statute that prohibits pre-viability abortions.

Supporters of the Pain-Capable Unborn Child Protection Act, including Collett, fail to come to grips with these unequivocal statements, which perhaps explains why they do not appear anywhere in her article. They simply don’t fit into her argument.

Two other considerations weaken the argument that the states may prohibit abortion whenever the unborn child can feel pain.

First, the state’s interest in preserving the life of the unborn child is obviously weightier than any asserted interest in the child’s capacity to experience pain. But under Roe, as reaffirmed in Casey, the state’s interest in preserving the unborn child’s life is not strong enough to support prohibiting abortion before viability. So, on what possible basis could a lesser interest justify such a prohibition? Under Roe as modified by Casey, the fact that the state has, as Collett puts it, an “interest in promoting respect for human life at all stages in the pregnancy,” quite clearly does not mean that the state may prohibit abortion at all stages in the pregnancy, or, for that matter, at any time before viability, as she concedes in her article. The state’s interest in promoting respect for unborn life was Casey’s basis for upholding regulations of abortion that do not prevent a woman from having an abortion pre-viability. No prohibitions were at stake in Casey.

Second, if the state has an interest in preventing pain to the unborn child during an abortion procedure, a ban on all abortions at the stage of pregnancy when the child can experience pain is obviously overkill. The state’s interest could be achieved by a far less draconian measure: simply require pain alleviation.

Collett tries to respond to this objection, but given the Court’s well-settled abortion jurisprudence, her response is mystifying. She states that this objection to the Act “reveals the fundamental conflict that underlies abortion jurisprudence—the conflict that the Court was unwilling to resolve in Roe and has avoided resolving in each case since—the question of which characteristics necessarily compel recognition of the unborn as members of the human family.”

It is not entirely clear what Collett means by this statement. Perhaps (and this is the most likely explanation) she is suggesting that the Court needs to decide when human life begins, a question it refused to address in Roe (and in any case since Roe). But surely she does not mean to imply that an unborn child becomes a “member of the human family” only at the point when his or her neurological and physical development has reached the stage when he or she can experience pain. Human life, in biological terms, begins long before the unborn child is capable of experiencing pain. In fact, as any basic embryology text explains, it begins with fertilization. But if the beginning of biological life determines when the states may prohibit abortion, then obviously there would be nothing left of the abortion “liberty” announced in Roe. That would hardly qualify as a “modest[] expan[sion] [of] the states’ interests in the protection of fetal life,” which is all that Collett claims would be needed to uphold the Pain-Capable Unborn Child Protection Act.

To believe that Justice Kennedy would vote to uphold a prohibition that applies to both pre-and post-viability abortions is in my opinion naive and finds no support in his joint opinion in Casey, his dissent in Carhart I, or his majority opinion in Carhart II. It is also dangerous. If such a prohibition is challenged and reaches the Supreme Court, the most likely outcome is that the Court would strike down the pre-viability applications of the law, on the authority of Roe v. Wade, as modified by Casey, and uphold the post-viability applications (a result that could be achieved without the downside of reaffirming Roe by prohibiting post-viability abortions, as Missouri and Ohio have recently done). The pro-life movement certainly does not have an interest supporting legislation that could lead the Court to further entrench Roe in our constitutional jurisprudence or force Chief Justice Roberts and Justice Alito to declare themselves on whether Roe should be overruled before a majority of the Court is prepared to overrule Roe.

Supporters of the Pain-Capable Unborn Child Protection Act may point out that none of the “pain” acts passed to date has been challenged by any abortion providers. This can be explained by several factors: the relatively few abortions performed during and after the twentieth week of pregnancy in several of these states (Alabama, Idaho, Indiana, Kansas and Oklahoma), the recency of their enactments (Arizona, which is based on a model developed by Americans United for Life, and Georgia), or the fact that in one state (Nebraska), the principal late-term abortion provider (Dr. Carhart) moved his practice to another state. Dr. Carhart and other physicians who perform late-term abortions may have made a prudential judgment not to challenge these laws because they fear that the Court, in the course of striking down the pre-viability applications of the law, would uphold the post-viability applications. Such a decision would provide a template for enacting meaningful post-viability prohibitions throughout the United States, replacing the weak and open-ended post-viability laws that are now on the books in most states. Regardless of the reason, however, the more states that enact the Pain-Capable Unborn Child Protection Act, the more likely that some physician performing abortions will challenge the Act, and that runs the risk of a fourth reaffirmation of Roe.

Public Policy Concerns

In addition to the constitutional concerns raised by the Pain-Capable Unborn Child Protection Act, it may be asked whether it is good public policy to ban abortions on the basis of the unborn child’s capability of experiencing pain. The unstated (and certainly unintended) message that such a policy communicates is that it is acceptable to kill unborn children when they are not thought to be capable of experiencing pain (curiously, none of the Pain-Capable Unborn Child Protection Acts adopted to date requires pain alleviation for the very few abortions that may be performed during and after the twentieth week following fertilization). This is not a message that the pro-life movement should send.

Everyone in the pro-life community would agree that the Supreme Court’s selection of viability as the stage of pregnancy when the state has the authority to prohibit abortions is arbitrary. But the selection of a slightly earlier stage of pregnancy—when the child is capable of experiencing pain—is no less arbitrary. Why would the pro-life community want to substitute one arbitrary standard for another? In my judgment, a Court that would be willing to abandon viability would be willing to overrule Roe and return the issue of abortion to the States. We are not at that point yet, but when we do get to that point, why would we want to ban only the one percent of abortions that are performed during and after the twentieth week of pregnancy, and leave unaffected and lawful the other ninety-nine percent of abortions performed earlier in pregnancy? This is a question supporters of the Pain-Capable Unborn Child Protection Act cannot answer.

The constitutional and public policy concerns posed by the Pain-Capable Unborn Child Protection Act should give pro-life legislators, lawyers, lobbyists, and activists pause before they decide to support such legislation. And those concerns may help to explain why so many state legislatures have refused to enact this piece of legislation.