Cameron Smith: Fetal pain law likely viable

  This month Governor Robert Bentley signed the Alabama Pain-Capable Unborn Child Protection Act into law. Alabama follows Nebraska, Idaho, Oklahoma, Kansas and Indiana with legislation designed to restrict abortions based on scientific evidence that a fetus may feel pain as early as 20 weeks after fertilization.    

  Research has shown that, as early as 20 weeks of gestation, a fetus has physiological and behavioral responses to pain stimuli. While opponents argue that the fetal experience is qualitatively distinct from the sensation most adults experience as pain, many concede that a human fetus has both hormonal and neural responses to pain stimulus.    

  In the United States, the battle over abortion has largely moved into the federal court system. Many state restrictions on abortion are eventually challenged in court on constitutional grounds. For this reason, all legislation must be considered in light of the current legal framework facing abortion restrictions.    

  While most Americans are generally familiar with the Supreme Court precedent in Roe v. Wade relating to abortion, Planned Parenthood v. Casey and subsequent cases better articulate the current legal gauntlet that abortion restrictions must pass through in order to be upheld as constitutionally sound.    

  The Court in Planned Parenthood v. Casey discarded the strict trimester formula in Roe v. Wade in favor of the current "viability" standard. Justice O'Connor's plurality opinion held that viability is the point where the "independent existence of a second life can ... be the object of state protection that ... overrides the rights of the woman [to have an abortion]."   

  The O'Connor opinion also finds that "[o]nly where state regulation imposes an undue burden on a woman's ability to make [the decision to have an abortion] does the power of the State reach into the heart of the liberty protected by the Due Process Clause."    

  The new wave of fetal pain-based legislation seeks to supplement the viability standard by effectively making the argument that the state has a compelling interest in protecting the lives of the unborn from the moment they can feel pain, independent from its interest in protecting a fetus from the point of viability.    

  According to the Centers for Disease Control and Prevention's latest abortion surveillance information, only about 1.3% of abortions were performed at or after 21 weeks. That translates to slightly fewer than 11,000 abortions per year.    

  Pro-abortion advocates such as Planned Parenthood and the American Civil Liberties Union have remained conspicuously silent on the fetal pain-based restrictions, choosing to go after easier targets such as personhood legislation and other restrictions related to abortion funding. Their silence on this issue should embolden supporters of life because it demonstrates concern on the part of abortion rights advocates to force the issue back before the Supreme Court, especially in areas where the restrictions are based on new scientific information.     

  The Supreme Court could possibly refuse to hear such a case, effectively reinforcing the viability standard; however, the new scientific evidence, new interests alleged by the states, and changes in the makeup of the Supreme Court itself improve the prospects for a challenge to fetal pain-based abortion restrictions to receive the Court's attention.    

  For those seeking to protect life, every single life saved marks another victory. For abortion advocates, the chance of an unfavorable Court ruling may not be worth the fight to maintain the relatively small percentage of abortions performed after 20 weeks. Rather than enacting laws that present no new facts for the Supreme Court to consider, state legislatures enacting fetal pain laws have discovered that the best way to fight for the lives of the unborn is to demonstrate to the public a good-faith willingness to reduce the numbers of abortions performed. New incremental restrictions at the state level create real challenges for abortion proponents in the court of public opinion as well as in the legal system.    

  States do have a compelling interest in the humane treatment of the unborn. Protections against intentionally inflicting pain and suffering on animals are commonplace in virtually every state. At least the same consideration must be extended to a fetus that, for even the most ardent abortion supporter, has the meaningful potential for human life. Abortion procedures such as dilation and evacuation (D&E) literally dismember a fetus and vacuum it out of the mother's uterus. Even those who do not believe that a fetus is a person can surely recognize this as an inhumane practice.

  Abortion remains a challenging issue for our nation and for Alabama. With the number of abortions performed annually in the United States at more than 1.2 million according to some estimates, those seeking to protect the unborn have much work left to do. After decades of battling, the recent enactment of fetal pain-based abortion restrictions is exceptionally encouraging and yet another reason to press on.  

  About the author: Cameron Smith is with the Alabama Policy Institute, a non-partisan, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families, which are indispensable to a prosperous society.  

  This article was published by the Alabama Policy Institute.