Previability Abortion and the Pain of the Unborn

Table of ContentsI. Introduction 1211II. Fetal Pain and the Partial-Birth Abortion Ban 1213III. Defining Our Terms 1215A. Conscious Appreciation 1215B. Behavioral and Physiological Responses 1218C. Neurological Development 1219IV. Federal Constitutional Analysis of Abortion Regulation 1224V. Fetal Pain as an Independent State Interest 1226VI. Responding to the Claim that Late Abortions Are Too Few to Be of Concern 1229VII. Conclusion 1230I IntroductionOne of the most basic and widely accepted principles of political governance is that that the state is justified in promulgating laws to protect individuals from harm by others.* 1 The state's power to legislate and protect against a variety of harms, including the harm of being made to suffer physical pain, has been recognized in both domestic2 and international law.3 "The Government of course has an obligation to protect its citizens from harm."4 The exercise of this power is up to the prudential judgment of our state and national legislatures, however, and is not a constant constitutional imperative.5This power of protection encompasses all living creatures,6 as well as developing fetal human life.7 Thirteen states and the House of Representatives have passed legislation that strictly limits abortions during the second half of the pregnancy, generally after nineteen weeks gestation,8 to protect the developing human person from pain.9 These laws, known as Pain-2. Capable Child Protection Acts, strictly limit abortion after the point of gestation when the unborn child has developed the capacity to feel pain during the process of an abortion.10Proponents argue that protecting an unborn child from such pain is a natural extension of the long tradition in American law prohibiting acts that inflict unwarranted suffering on human beings and other sentient creatures.* 11 Ill, Opponents argue that such laws are based on scientific speculation and inflammatory rhetoric.12 Given the large number of states adopting Pain-Capable Child Protection Acts, it is no surprise that these arguments are now before federal courts. This Article explores the arguments supporting the existence of fetal pain and the constitutionality of abortion limits at twenty weeks gestation.II Fetal Pain and the Partial-Birth Abortion BanThe question of whether and when the unborn child feels pain is not new. Since the early 1980s, there has been extensive debate about whether the unborn experience pain during abortion.13 President Reagan brought this issue squarely into public view in 1984 when he said, "when the lives of the unborn are snuffed out [by abortion], they often feel pain, pain that is long and agonizing."14 This debate reemerged and intensified when the world caught a glimpse of life within the womb through the picture of Samuel Armas's tiny hand apparently grasping the finger of his perinatal surgeon who was repairing Samuel's spine when he was only twenty-one weeks in gestation.15The debate over fetal pain made its way into the courts after the passage of state and federal bans of a procedure commonly known as "partial-birth abortion."16 In ruling on the constitutionality of the federal ban, Judge Richard C. Casey, sitting in the Southern District of New York, called the procedure "gruesome, brutal, barbaric, and uncivilized."17 He found that abortion procedures "subject fetuses to severe pain."18 In contrast, Judge Phyllis J. Hamilton of the Northern District of California arrived at a different conclusion. …