10 HASTINGS CENTER REPORT September-October 2012

Abortion bans premised on fetal pain capacity are this decade’s “partial-birth abortion”: a medi-

cally suspect anti-choice initiative that can be politically difficult to oppose. No one is “pro–fetal pain.” But rhetori-cally, the concept of “fetal pain” works to conflate the capacity for pain with the experience of pain. If pain justified banning medical procedures, all surgery would be illegal. Pain is a routine side effect of medical practice. What’s un-ethical is unnecessary pain, and that’s why the standard medical response to pain is palliation.

This is true in abortion care, too. Analgesia or anesthesia currently used to control the patient’s pain during abortion likely does the same for any fetuses that might be capable of expe-riencing it, and women undergoing ter-minations after twenty weeks are more likely to receive general anesthesia. Al-ternatively, sometimes abortion provid-ers end fetal life with a quick injection before the procedure after eighteen to twenty weeks. Clinical guidelines for fetal pain management at gestational ages when it could be experienced might mirror established end-of-life palliative care protocols involving sur-rogate decision-makers.

But these abortion bans aren’t “anti–fetal pain.” Instead, they imply that the capacity for pain changes fetal moral status enough to trump the bodily in-tegrity of the person carrying the fetus. In 2010 Nebraska became the first state to pass a law based on model legisla-tion drafted by the National Right to

Life Committee1 banning abortions after twenty weeks on the assertion that this is when fetuses can experience pain.2 Since then eight other states have passed laws similar to Nebraska’s “Pain-Capable Unborn Child Protection Act,”3 and on July 31, 2012, a majority of the House of Representatives voted in favor of a similar ban for the Dis-trict of Columbia (though the measure wasn’t successful because it was consid-ered under special rules that require a two-thirds vote for passage).4 Arizona’s twenty-week ban premised on fetal pain is the first to be considered by a federal appeals court, and on August 1, 2012, it was enjoined by the Ninth Circuit pending further litigation on the matter.5

Discussion of these abortion bans can get mired in contradictory claims about when fetuses are capable of ex-periencing pain. But the scientific con-clusion is irrelevant to the underlying policy question they raise: what is the moral significance (or lack thereof ) of this developmental milestone, and why should it trump the significance of vi-ability? Therefore, I will set aside the science of when fetuses might be ca-pable of experiencing pain and instead analyze both the constitutional status of these bans and the rhetorical power they gain by mislabeling their target as “late abortion.”

Abortion bans premised on fetal pain capacity are clear violations of the Supreme Court’s rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) because they disregard

the viability standard those decisions established, replacing it with a devel-opmental stage that legislators assert occurs earlier than viability without a legislative rationale for why pain capac-ity should be the key turning point.

Roe does not ban any abortions. This is because a fetus does not attain legal “personhood” until birth. The Roe Court was explicit about its conclusion on this matter: “The Constitution does not define ‘person’ in so many words. . . . None [of the sixteen uses of the word ‘person’ in the Constitution] indi-cates, with any assurance, that it has any possible pre-natal application. All this, together with our observation . . . that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘per-son,’ as used in the Fourteenth Amend-ment, does not include the unborn.”6

Yet the Roe Court established when states may choose to ban abortion if they want to: after viability. Nineteen years later, the Court affirmed the vi-ability standard in Casey, and in the twenty years since, it has not deviated from the viability line. The Court said the state’s interest in fetal life becomes “compelling” at viability “because the fetus then presumably has the capa-bility of meaningful life outside the mother’s womb,”7 “so that the indepen-dent existence of the second life can, in reason and all fairness, be the object of state protection that now overrides the rights of the woman.”8

Theoretically the viability line makes sense—perhaps fetuses gain a new mor-al status after they could survive out-side their mother’s womb. However, in practice, the line creates what I call “the viability paradox”: as soon fetuses can survive outside the womb, the state can force women to keep them inside their wombs. No matter how dramatically a woman’s personal circumstances might change after viability, if the pregnancy doesn’t threaten her life or health, the state may require her to remain preg-nant against her will for almost half her pregnancy. Many people mistakenly be-lieve that Roe decided a postviable fetus is a “person,” and there’s an underlying

Abortion Bans Premised on Fetal Pain Capacity

policy and politics

by Katie Watson

September-October 2012 HASTINGS CENTER REPORT 11

logic to this misunderstanding: how can something that isn’t a constitutional person ever trump the rights of some-one who is? I’m not arguing here that Roe should not have chosen the viabil-ity line; I’m observing that the Supreme Court’s significant compromise in Roe and Casey—surrendering women’s bodi-ly control to the state for almost half of pregnancy—has been underappreciated in abortion policy debates generally.

Abortion bans premised on fetal pain don’t just take four weeks off the abor-tion right; they increase from sixteen to twenty weeks the amount of time the state can subordinate a person’s ordinary bodily integrity right to the interests of something that has not yet attained the constitutional status of person. And the new bans have this practical effect without offering a theoretical rationale for why capacity for pain, one of many biological milestones, is more signifi-cant than the ability to survive outside the womb.

Abortion bans premised on fetal pain also harness the rhetorical power of “late-term” abortions because they aim to eliminate abortions performed be-tween twenty and twenty-four weeks.9 The “partial-birth abortion” controversy showed the effectiveness of this strategy: although the procedure debated there was typically used in the second trimes-ter, many otherwise pro-choice legisla-tors and voters found it hard to publicly defend “late abortions.” There are philosophical reasons why advancing gestational age might change the moral status of the fetus, but here I want to ex-amine how the rhetorical impact of call-ing abortions at twenty to twenty-four weeks “late term” might play an unwar-ranted conceptual role in the debate.

The word “late” has negative per-sonal connotations, as in “tardy.” In the context of “choice,” a person who is “late” has missed the deadline for a decision. But the standard deadline for elective abortion is approximately twenty-four weeks (viability), so women having abortions at twenty to twenty-four weeks are not late in this sense. “Late” could be defended as referring to the last portion of the twenty-four-week window in which Roe protected

elective abortions. But combining “late” with “term” makes a conceptual switch. Pregnancy doesn’t end at twenty-four weeks; babies “carried to term” are born at approximately forty weeks. Adding the word “term” puts the timing in the context of pregnancy as a whole, such that “late-term abortion” unconsciously suggests a fetus close to healthy deliv-ery—or, at minimum, one that is viable.

“Midterm abortion” would be a more accurate label for abortions that occur in the middle of a forty-week term. That label would acknowledge the significance of Roe and Casey’s profound compromise: the months the Supreme Court allows states to trump citizens’ bodily integrity in favor of something that is not yet a constitutional person. It also lines up neatly with viability, mark-ing those abortions that occur before the constitutional deadline as “early” (one to twelve weeks) and “midterm” (thirteen to twenty-four weeks) and the rare ones that really do occur after the viability deadline (because the pregnan-cy threatens the mother’s life or health, or an anomaly renders the fetus nonvia-ble even in the third trimester) as “late.”

Abortion bans premised on fetal pain capacity are linked to the federal “partial-birth abortion” ban in another way: the Supreme Court’s 2007 opinion uphold-ing that ban, Gonzales v. Carhart, relied on the concept of “medical uncertain-ty.” The three lower federal courts con-sidering challenges to the ban reviewed extensive evidence and testimony on the factual question whether intact di-lation and evacuation (more commonly known as “D&E”) was sometimes nec-essary for women’s health. Two courts concluded the evidence showed it was, and the third concluded “a significant body of medical opinion” holds it has safety advantages. As a result, many thought the ban’s lack of a health excep-tion would make it unconstitutional. However, the Carhart Court held that the existence of dissenting testimony constituted “medical uncertainty” suf-ficient to uphold the ban on the intact D&E procedure.10 The current trend of abortion bans premised on fetal pain capacity appears to be a consequence of Carhart’s suggestion that producing any

conflicting scientific opinion could cre-ate “medical uncertainty.”

Carhart’s “medical uncertainty” stan-dard means that even if a vast majority of reputable physicians and scientists dispute the fetal pain capacity claims of these statutes, the existence of any con-tradictory testimony makes it unlikely the new bans will be stricken on scien-tific grounds. But the “medical uncer-tainty” standard has larger implications, as well—it is an example of how recent statutes and opinions that on their face seem to threaten only the abortion right actually may threaten the autonomy of the medical profession and legislative standards for accurate science overall. Physicians and ethicists who avoid re-productive policy issues would profit from understanding how defense of reproductive rights is often a defense of the entire field.

1. National Right to Life, “Pain-Capable Unborn Child Protection Act Becomes Law in Alabama,” press release, June 16, 2011, http://www.nrlc.org/press_releases_new/Re-lease061611.html.

2. Neb. Rev. Stat. sec. 28-3, 102 - 28-3,111 (2010).

3. Ala. Code sec. 26-23B (2011); Idaho Code Ann. sec. 18-5 (2011); Ind. Code secs. 16-34-1-9 and 16-34-2-1 (2011); Kan. Stat. Ann. sec. 65-6722-6724 (2011); okla. stat. tit. 63, sec. 1-745 (2011); Ariz. Rev. Stat. sec. 36-2159 (2012); Ga. Code Ann. sec. 16-12-141 (2012); and Louisiana SB 766, to be codified as La. Rev. Stat. Ann. Sec. 1299.30.1 (2012).

4. Associated Press, “Bill to Ban Abor-tions in DC after 20 Weeks of Pregnancy Fails in the House,” Washington Post July 31, 2012, at http://www.washingtonpost.com/politics/congress/bill-to-ban-abortions-in-dc-after-20-weeks-of-pregnancy-fails-in-the-house/2012/07/31/gJQAssLtNX_story.html.

5. Isaacson v. Horne (No. 12-166702012). Briefs and decisions in the case to date can be found at http://www.ca9.uscourts.gov/con-tent/view.php?pk_id=0000000616.

6. Roe v. Wade 410 US 113, 158 (1973).7. Ibid., at 163.8. Planned Parenthood v. Casey 505 U.S.

833, 870 (1992).9. See, for example, D. Schwartz, U.S. Ap-

peals Court Blocks Arizona’s New Late-Term Abortion Ban,” Reuters August 1, 2012, http://www.reuters.com/article/2012/08/02/us-usa-abortion-arizona-idUSBRE8701L820120802.

10. Gonzales v. Carhart 550 US 124, 161-67 (2007).

DoI: 10.1002/hast.78

This column appears by arrangement with the American Society for Bioethics and Humanities.