Pain-Capable Unborn Child Act

By Andy Cole, Class of 2018

The United States House of Representatives voted to approve H.R. 36, Pain-Capable Unborn Child Protection Act, a bill that would ban abortions in the country after 20 weeks of gestation because some scientific studies show that fetuses can feel pain at 20 weeks. Similar legislation passed in the House in 2015, but failed in the Senate. Even though the legislation probably faces a similar fate this year, it is important to look at the legislation and determine what would happen if this legislation did pass in the Senate and was signed by the President.

Most people point to the landmark case of Roe v. Wade to talk about abortion constitutionality. However, nearly twenty years after Roe, the Supreme Court largely affirmed its ruling from Roe in Planned Parenthood v. Casey. Casey offered the Supreme Court an opportunity to overturn Roe. Instead of overturning Roe, the Court created an undue burden test. This test continued to allow states to prohibit post-viability abortions, with the exception of cases where the life and health of the mother are at stake, but changed the rest of the analysis. Under the Casey framework before a fetus reaches viability, a woman has the right to have an abortion without an undue burden. This changes slightly from Roe. The idea of an undue burden test still exists today.

Many pro-life groups argue that these bills are constitutional, or alternatively pain capable standard is a better standard than viability standard.This option has been met with some controversy. The bill passed by the House, would make it a crime to perform abortions after 20 weeks with exceptions for rape, incest, and to save the life of the mother.

Many states have passed similar statutes, and some of these have been challenged in court based on the fact that they are unconstitutional because they violate the viability standard. Currently, there are very few cases of fetuses surviving if born at 20 weeks, which is problematic under the viability standard.

Some of the early versions of these bills have started making their way through the judicial system. In Isaacson v. Horne, the Ninth Circuit held that an Arizona law that prohibited abortions beginning at 20 weeks with a medical emergency exception. Both parties in the case agreed that a fetus is typically not viable at 20 weeks. The Court held that the State’s interests were not strong enough to prevent pre-viability abortions. However, a pain cable bill has never actually been argued in front of the Supreme Court.

Attorneys representing critics of these bills can argue that the bills are unconstitutional based on the viability standard and that the science behind the pain capable testing is disputed and controversial. Additionally, they can argue that pain capable acts restrict a woman’s right to an abortion at a time when the fetus would not be able to live outside of the womb. Many can argue that the science behind these bills is not strong enough to overturn the viability standard. The critics say that there is truly no way to know if a fetus is feeling pain in the womb or just experiencing a flinch or reaction to something that doctors and researchers could be mistaking as the sensing of pain.

Attorneys representing legislatures and pro-life groups can point to the fact that there are recently documented cases of fetuses surviving outside of the womb at 20 weeks. In fact, one child who survived at 20 weeks was present during the introduction of the bill in the House. Attorneys can also point to the rapid advance in medical technology that allows premature children to live at even earlier points in the gestation cycle. Additionally, attorneys can argue for a change in the viability standard and by the time this bill would reach the Supreme Court, there is likely to be changes on the court.

Senator Lindsey Graham has introduced the bill in the United States Senate. In the unlikely event this bill does pass the Senate, it is more than likely unconstitutional based on current standards. However, things could definitely change in the event of a change on the Supreme Court.

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