The Significance of the New “Pain Capable Abortion” Laws

Posted in: Health Law

In a recent salvo in the abortion wars, the pro-life movement has successfully moved the legislatures of several states to pass laws banning the procedure at 20 weeks post-fertilization (or 22 weeks after a pregnant woman’s last menstrual period or “LMP”).  And in June of this year, the U.S. House of Representatives passed the “Pain-Capable Unborn Child Protection Act,” a similar ban at the federal level, which would—in the unlikely event that it passed—yield a national prohibition against abortion at 20 weeks post-fertilization (with various exceptions).  Some within the pro-choice movement have reportedly characterized such laws as a sort of stealth operation, through which barely-noticeable changes in the law (from bans after 24 weeks post-LMP, the estimated viability point at which the U.S. Supreme Court has approved outright prohibitions, to bans after 22 weeks post-LMP) move the pro-life agenda forward without alarming women.  In this column, I will suggest something quite different that may be at work.

The Roe v. Wade Framework

When it decided Roe v. Wade, the Supreme Court announced three important principles about abortion:  First, prior to birth, a zygote/embryo/fetus is not a “person,” for constitutional purposes, and therefore lacks legal entitlements under the Due Process Clause of the Fourteenth Amendment; Second, the government has a legitimate interest in the potential life of the developing fetus, and this interest intensifies during the pregnancy until, at viability—the point at which the fetus could survive outside the womb (if delivered early)—the government’s interest becomes great enough to justify prohibiting the procedure, with exceptions for preserving the life or health of the woman; Third, prior to viability, the government may not prohibit abortion, as a matter of the individual pregnant woman’s right to substantive Due Process liberty, though the government may regulate abortions in various ways, depending in part on its purpose in doing so.

In the decades following Roe, the Court’s announced right to abortion has contracted, and the government’s power to intervene in abortion decisions has correspondingly expanded.  Nonetheless, and despite these changes, the viability line has survived more or less intact.  It is still the case that prior to the stage of pregnancy at which a fetus becomes viable, the government may not prohibit all abortions, or otherwise pass laws that, in purpose or effect, impose an “undue burden” on a woman’s right to terminate her pregnancy.

The pro-life movement recognizes a full “person” from the moment that a sperm cell merges with an egg cell, but the Supreme Court’s 1992 decision in Planned Parenthood v. Casey permits the pregnant woman, ultimately, to decide how to value the fetus.  In the words of the three-Justice plurality opinion:

The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.

At least prior to viability, then, it is still (constitutionally) inaccurate to describe the human fetus as a legal “person,” endowed with constitutional protection against abortion.

Viability Versus Pain

Critics have argued that fetal viability is neither a stable nor a principled line to draw between a fetus that a woman may legally kill, as a matter of constitutional right, and a fetus the life of which the government may protect by altogether prohibiting the termination of a pregnancy (with limited exceptions for a woman’s life or health).  What accounts for the viability line, a line that can move earlier and earlier with the advance of technology?

One argument for focusing on viability is that to be a separate individual, one must be capable of surviving without reliance on a particular other person for life-support.  If you can live only so long as you are physiologically bound to another individual, then you are, on this account, not truly an individual.  This argument, however, if taken seriously, would mean that two conjoined twins are not really two individuals, each entitled to live, to the extent that one or both would be unable to survive if separated from his or her sibling.  The instability of viability also renders the line vulnerable.  After all, does it really make sense to assign greater moral value to a living creature simply by virtue of what medical technology can do for that living creature?  Should the existence of an artificial womb fundamentally alter the inherent status of an eight-cell embryo?  Viability, in a deep sense, is not a feature of an embryo or fetus at all, so much as it is a fact about the surrounding society’s medical capabilities.

I have offered something of a defense of the viability line here.  My defense acknowledges that viability has nothing to do with the embryo or fetus, but I suggest that viability is the point at which it becomes possible to honor a woman’s bodily-integrity interest in being free of an unwanted pregnancy, while simultaneously honoring the fetus’s (or embryo’s) interest in living, however strong or weak that interest may be.  Prior to viability, by contrast, it is physically impossible for a woman to terminate a pregnancy, a serious and profound imposition on her bodily integrity, without also killing the fetus, embryo, or zygote in the process.  The instability of viability, on my approach, ceases to be a weakness, because it is consistent with the fact that a fetus’s cognizable interests do not themselves change at viability.  What changes, on my theory, is the availability of an alternative to abortion for protecting a woman’s right to bodily integrity—live birth of the viable fetus.  What changes is the result of balancing of the competing values, given the available alternatives.

The 20-week (post-fertilization) line that pain-capable statutes draw may be only two weeks earlier than the current viability line.  But conceptually, it is worlds apart from that line, if one thinks about viability in the way that I suggest.  Supporters of the earlier, 20-week, line defend it as the point at which fetuses become capable of feeling pain (a biological assertion that is medically contested).  A statutory name like the “Pain-Capable Unborn Child Protection Act” reflects this idea.

Rather than relying on some feature of the physical connection between the pregnant woman and the fetus, then, as the viability line does, the “pain capable” line is all about the fetus him/her/itself.  The 20-weeks-post-fertilization line emphasizes that a sentient fetus, one who can suffer during the performance of an abortion, is entitled to be free of violence, an entitlement that overrides—in the pro-life view—any competing interests that the pregnant woman (or anyone else) might have.  Unlike viability, sentience is thus both stable and entirely coherent as a principle that divides permissible from impermissible abortion, though it flies in the face of existing constitutional doctrine and the pro-choice view.

Americans’ View of Abortion

Most Americans fall outside of the clean categories of absolutely pro-life (opposed to all abortion, from fertilization on) and absolutely pro-choice (opposed to all limits on abortion, at any stage).  People typically, with some geographic and religious variation, feel relatively comfortable with early abortion but become increasingly disturbed by the prospect of abortion as fetal development progresses.  For such people, the “viability” line may mean very little, because it is only incidentally and contingently tied to fetal development.  The “pain” line, on the other hand, is likely to be very compelling for this audience.

When asked whether an innocent being who can experience pain should be subject to death by abortion, a substantial proportion of the American population will likely say “No.”  To oppose abortion at fetal sentience, then, may evidence the view that sentient beings are entitled to live, a view that may be threatening to pro-choice groups in a way that viability-based prohibitions are not.

Further Implications of Sentience

The promotion of sentience-based prohibitions on abortion has some implications beyond the sustainability of the viability line that was announced in Roe and reaffirmed in Casey.  If it is sentience that designates a being’s entitlement to live, then the pro-life movement may have a difficult time persuading the public that early abortions are just as bad as late ones.  This position, held by the pro-life movement, is flatly at odds with the salience of sentience in defining the moral entitlements of a fetus.

To argue that early abortions are just as wrong as late ones is to assert that sentience is irrelevant, a claim belied by public views of abortion as well as by the pro-life movement’s own promotion of pain-capable-abortion laws.

At the same time, the sentience line has a second important implication for the morality of human behavior:  It means that what matters most is not whether an organism is a member of the human species (which zygotes are, to the same degree as 20-week-post-fertilization fetuses are) but whether an organism can suffer.  And if that is so, then humans might need to reconsider the daily choice to consume animal products such as meat, poultry, dairy, and eggs.

Each decision to consume animal products is a decision to pay people to hurt and kill sentient beings who are at least as capable of suffering terror and pain as a second-trimester fetus is.  As Jeremy Bentham said over two hundred years ago, “a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day, or a week, or even a month, old. But suppose the case were otherwise, what would it avail? the question is not, Can they reason? nor, Can they talk? but, Can they suffer?”

The line that pro-life advocates have been promoting on the question of abortion, the sentience line, is a very appealing one.  And its appeal to people reflects the wisdom of Bentham’s words.  It is ultimately a vegan world that best expresses the sentience line between violence that “counts” and violence that does not.  It is the line between plants and animals, and it has at least as much to say about what we eat as it does about whether and when abortion begins to raise serious moral questions.