As first noted by Jason Tolbert, Rep. Andy Mayberry (R-27) plans to propose a law, the “Pain Capable Unborn Child Protection Act,” which would ban all abortions after 20 weeks’ gestation based on certain scientific studies suggesting that this is the point after which fetuses may feel pain. I am really curious to see how Mayberry words his bill, mainly because I want to see how closely this bill tracks with a Nebraska law enacted last year that did the same thing and from which Mayberry’s bill has borrowed its title. Even without seeing the bill, however, I have at least three problems with the entire concept behind it: (1) it is almost certainly unconstitutional, at least insofar as it categorically bans pre-viability abortions; (2) it is a hypocritical and unscientific use of scientific data; and (3) it is logically inconsistent and misleading to focus on fetal pain in this context.
Constitutionality
In 1973, the Supreme Court in Roe v. Wade held that the right to privacy under the Due Process clause of the 14th extends to a woman’s decision to have an abortion, but that right must be balanced against the state’s two legitimate interests for regulating abortions: protecting prenatal life and protecting the mother’s health. The Roe Court recognized that the state’s interests were weakest at the moment of conception and were strongest once the fetus was viable (“usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks”). Thus, they created a sliding scale tying the state’s ability to regulate abortions to the trimesters of a woman’s pregnancy.
The Roe decision was revisited in several cases. See, e.g., Akron v. Akron Center for Reproductive Health, Thornburgh v. American College of Obstetricians and Gynecologists, Webster v. Reproductive Health Services, Planned Parenthood v. Casey, Stenberg v. Carhart, and Gonzales v. Carhart. Most important among these later cases for purposes of this discussion was Casey, in which the Court in a plurality opinion upheld the Constitutional protections grounded in the Due Process Clause of the Fourteenth Amendment and repeated the famous language of Eisenstadt v. Baird: “[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
Under Casey, the heightened scrutiny of abortion regulations under Roe was replaced with a less stringent standard from Justice O’Connor’s dissent in Akron, which outlawed any regulations imposing an “undue burden” that had “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” The Casey court also weakened the rigid trimester framework of Roe, noting that, while viability may have been around 28 weeks when Roe was decided, modern medicine might move that date closer to 23 or 24 weeks. Casey did not, however, set a specific week as the cutoff for viability, noting only that “[w]henever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided.”
It is this part of Casey that would make any law that categorically barred all abortions after twenty weeks’ gestation unconstitutional. After all, whether a fetus may experience pain at 20 weeks — a point on which scientists do not agree (see below) — does not change whether a fetus is viable at that same point. By forbidding abortions between 20 weeks and viability, Arkansas would very obviously be putting an undue burden as defined in Casey on certain pre-viability abortions. Nor does it matter that the question of exactly when viability may occur is unclear; as the Court stated in Casey, “Liberty must not be extinguished for want of a line that is clear.” As long as it has not been established that 20 weeks’ gestation marks the moment of viability, any ban on abortions at that point, no matter what the rationale for that ban was, would be violative of the Due Process Clause of the 14th Amendment.
To be sure, assuming Rep. Mayberry actually proposes this bill, it would not be the first time this session that a lawmakers had submitted a bill that was without question unconstitutional. This fact might be more troubling than the bills themselves, really. After all, it is either a sign that we have elected people who are unfamiliar with the Supremacy Clause and who fail to even give their bills’ constitutionality any more than a passing thought, or we have elected lawmakers who are willing to submit laws that they know are unconstitutional and are willing to deal with the headaches and costs (borne by the taxpayers, of course) that will arise should such a bill pass, all to make some sort of political statement. Neither answer is particularly pleasing to contemplate.
Hypocrisy
I assume that this bill will be based on a study like the one by Kanwaljeet “Sunny” Anand, director of the Pain Neurobiology Laboratory at the University of Tennessee Health Science Center in Memphis. (I assume this because a quick Google search for “fetus 20 weeks pain” turned up Anand’s study more than once in conjunction with the Nebraska law banning abortions after 20 weeks.) While it is entirely possible that Anand and his team are correct, there is nothing even approaching a scientific consensus on this point. One need not look very hard to find other studies on the issue such those by psychologist and fetal pain expert Stuart Derbyshire at the University of Birmingham in the United Kingdom, which suggests that 26 weeks is the earliest that a fetus could experience pain, or director of Obstetrical Anesthesia at the University of California, San Francisco, Mark Rosen, whose study in the Journal of the American Medical Association in 2005 suggested that fetuses are not capable of feeling pain until at least 29 weeks into pregnancy. Simply put, the data and studies on this issue cover a fairly wide range, and using only the studies that support your position while ignoring the more numerous studies that do not is a perversion of science.
Worse still, the hypocrisy inherent in this Republican embrace of a little bit of scientific evidence is staggering. We are talking about (some) members of a party who deny the existence of evolution and seek to undermine its educational value, despite the overwhelming acceptance of the theory by millions of scientists in every imaginable field of study, simply because evolution does not comport with how Republicans want to believe the world to be. This is a party with some members who deny the existence of man-made climate change, despite the fact that the scientific community is generally in accord that it exists, simply because man-made climate change would suggest that man had the ability to ruin something that God created specifically for man to use. It’s a party comprised in part of people who deny any biological bases for homosexuality, despite the fact that certain biological links have been located (and despite the logical flaw inherent in suggesting that homosexuality is a choice while heterosexuality is not), because that science might hamper their ability to promote their own bigoted vision of morality on others. It is a party with many members who deny the existence of a Big Bang, despite the fact that every reputable physicist in the world ascribes to some form of the Big Bang theory.
It is, quite literally, a party that has purposefully ignored science at every turn. Yet now, in an area where there is nowhere near the consensus present in these other issues, they are willing to cling to a study as somehow supporting their Biblical-morality-based position on abortion. They are attempting to use science in a non-scientific way to support a non-scientific political position. That kind of hypocrisy would be impressive if it didn’t have such wide-ranging effects on Arkansas and the United States.
Logical Inconsistency
This is somewhat similar to the previous point, but rather than focusing on Republican disdain for science generally, this is more a question of “so what?” That is to say, would you expect Republicans to weaken their anti-abortion stance if a study surprisingly found that fetuses did not feel pain at all? Of course not, because their argument is not based on science or reason; it is based on a religious perspective, and if you are starting from the premise that God does not want abortions, then anything that the fetus does or does not feel in utero is moot. Sure, it might make someone feel even more strongly about his existing anti-abortion stance, but that’s neither important in this discussion nor is it persuasive in the debate (unless perhaps you are also willing to concede that, for example, the fact that homosexuals would feel better if they were allowed to marry somehow strengthens their side in that argument). Look at it this way: if you hold a position that no amount of science could dissuade you from believing, then scientific evidence has no place in a debate in favor of your side of the issue. Attempting to shoehorn it into your argument this late in the game is just an effort to move the goalposts a little. Worse, it’s cowardly, in that it hopes people will believe science and ascribe to your belief even where you would not buy scientific evidence to the opposite effect.
Conclusion
I write all of this sadly cognizant of the fact that there will be many who see this as an attack on religion. That is not the case. I admittedly do have problems with religion as a driving force behind legislation, but my issues here are a step removed from that; I am starting from the position that the anti-abortion movement is based in religion, and then I am pointing out flaws in this particular attempt to further the goals of that movement. The bill, if it mirrors what is done in Nebraska, is unconstitutional. The use of a scientific research in this context is both hypocritical and logically inconsistent. Lather, rinse, repeat.