Legislation to Protect Babies Who Feel Pain

 

16 State Attorneys General Urge U.S. Supreme Court to Take Case to Rule that Pain-Capable Unborn Children May Be Protected from Abortion

By Mary Spaulding Balch, JD, director, National Right to Life Department of State Legislation

Ohio Attorney General Mike Dewine

A “friend of the court” brief has been filed on behalf of the attorneys general of sixteen states arguing that the United States Supreme Court should agree to decide whether it is constitutional to protect unborn children from abortion after the point at which substantial medical evidence demonstrates they are capable of feeling pain.

The brief, filed October 30, calls on the High Court to agree to consider overturning a ruling by the federal Ninth Circuit Court of Appeals that struck down Arizona’s law banning abortion at the point when the unborn baby can feel pain. The Court of Appeals decision reversed a federal district court opinion that had upheld the statute which found a compelling state interest in protecting the lives of unborn children capable of feeling pain.

Ten other states have adopted such legislation, derived from a model developed by the National Right to Life Committee. A similar bill that would have nationwide application has been passed by the U.S. House of Representatives and introduced in the U.S. Senate by Senator Lindsey Graham (R-SC). Eight of the state laws are now in effect; two others are currently enjoined pending litigation.
Referring to the case of “Horne v. Isaacson,” the brief points out its nationwide impact, noting that other states are considering similar bills in addition to those already passed.
The brief cites numerous studies demonstrating that

“A growing body of evidence suggests that an unborn child can suffer pain by twenty weeks’ gestation. Scientific literature has shown that a fetus at this stage has the human attributes necessary to feel pain.”

Additionally, the brief cites studies showing that by twenty weeks unborn children have pain receptors throughout their bodies and possess a developed brainstem and thalamus that “permit the brain to receive, react to, and process pain.”

Scientific studies are cited which used real-time ultrasound to observe unborn children at twenty weeks reacting to painful stimuli by exhibiting complex movements indicative of pain.
The brief also points to studies which show twenty-week unborn children responding to painful stimuli with rapid movement, breathing, and cardiovascular changes accompanying a hormonal stress response.

Also included are studies indicating a correlation between painful stimuli in utero and a child’s long-term neurodevelopment resulting in altered pain sensitivity and developmental disabilities later in life.

All this new information, the brief maintains, provides basis upon which the states have relied in passing laws which protect the lives of pain-capable unborn children.
It notes the states have clearly stated why they are passing these laws. Alabama’s law, for instance, states its “purpose” is “to assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.” Ala. Code § 26-23B-2(12).

The states also have specifically addressed claims to the contrary, and have rejected them. Alabama’s law, for example, disagrees with “[t]he position, asserted by some medical experts, that the unborn child remains in a coma-like sleep state that precludes the unborn child experiencing pain.” Ala. Code § 26-23B-2(10). According to the Alabama law, that view is undermined both by “the documented reaction of unborn children to painful stimuli” and by “the experience of fetal surgeons who have found it necessary to sedate the unborn child with anesthesia to prevent the unborn child from thrashing about in reaction to invasive surgery.”

Seeking the high Court’s guidance on this issue, the State Attorneys General point out that the Court has yet to address the state’s interest as it relates to the issue of the pain of the unborn child. Building on Supreme Court precedent (“Gonzales v. Carhart” ). when it upheld the Partial-Birth Abortion Ban Act, the brief states that States have the right to act even when some dispute the medical and scientific evidence. “That is especially true here— where even the mere risk of substantial pain is unworthy of a society valuing the dignity of all circumstances of life,” the brief contends.

The Montana and Ohio Attorneys General took the lead on the brief. Joining them were the Attorneys General of Alabama, Colorado, Georgia, Idaho, Indiana, Kansas, Michigan, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas and Utah.

Source: NRLC News