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About That 20 Weeks and Pain Argument

Recently, the new Texas abortion bill was in the news. State senator Wendy Davis made a national name for herself, but little else in thwarting the eventual passage of the law. In reality, Texas was the latest of about a dozen states to establish the 20-week mark of gestation as a line of demarcation for when the state’s interest in protecting the life of the fetus begins to compete with the “right” of a woman to terminate a pregnancy. In this, Texas is not unique or groundbreaking. Pro-choice proponents will point out that the science for the belief that a fetus begins to feel pain at 20 weeks is flawed, as if any liberal science is inherently without flaws.

In Blackmun’s majority opinion in Roe v. Wade, which is basically a fine doctoral thesis on the history of abortion with very little constitutional law, much was focused on the concept of “quickening,” or when the fetus’ movements can be felt of seen. Usually, this occurs at 16 weeks. Citing evidence from a variety of sources, Blackmun then dismisses the quickening definition as flawed and based on outdated and theologically-derived definitions. For example, he cites that movement was one of two of Thomas Aquinas’ requirements for “life.” Obviously, states need a working definition of “life” if they are to provide protections for that life. For the moment, let us just ignore the beliefs that life begins at the moment of conception. This writer happens to believe personally that it does because what else will it, if left unhindered, turn into? Even if a fertilized egg turned into a flower, it would be “life.” But, is it human life?

Obviously, based upon English common law and canon law leading up to our country’s founding, human life in the context of abortion was defined by “quickening.” This was the first broadly accepted definition of human life. But, there are other definitions one can use. The Supreme Court in 1973 decided upon a different definition- viability, or the age at which the “life” can exist and survive outside the uterus. Then, it was accepted medical consensus that this occurred sometime after the 24th week, or 6th month of pregnancy. It was at this point that a state’s interest in protecting human life became most important. The Roe framework established a “trichotomy” with respect to the state’s interests where they were basically excluded in the first trimester, had some interests in the second trimester, and even greater interests in the third trimester. But it must remembered that it was seven Supreme Court Justices who basically played the role of Solomon and created a legal definition that eluded the bulk of mankind over the centuries. The viability criteria and definition is no more and no less valid than any other definition of “human life” and when the state’s interest in protecting that human life becomes tantamount. In 1973, like 2013, they could have “chosen” any number of definitions.

It became apparent soon after Roe that this system was flawed. Advances in medical technology were moving the age of viability earlier into the gestational period with each successive decade. This is testimony to the advances in neonatal care of premature newborns, not to mention in vitro fertilization techniques and other scientific advances. Essentially, the 1992 case Planned Parenthood vs. Casey recognized this fact. In 19 short years from Roe to Planned Parenthood, medical advances had pushed the established age of viability from 28 weeks in 1973 to 22 weeks in 1992. Blackmun, chosen to write Roe because of his medical background as a counsel at the Mayo Clinic, should have realized this back in 1973 which makes the viability argument all the more questionable from the get-go.

There is a discernible difference between liberals and conservatives, pro-life and pro-choice camps that needs mentioning here. The liberals and pro-choice groups focus almost exclusively on the Roe v. Wade decision to the ignorance of Planned Parenthood v. Casey. Conservatives, on the other hand, are split into two camps- those that believe that Roe should be overturned, and another that can live with Roe, but use Planned Parenthood to advance their agenda. In effect, most of the controversy involving state-level abortion laws involve states working within the parameters of the Planned Parenthood vs. Casey decision. Although that decision upheld the “basic findings” of Roe, it scrapped the viability/trimester framework in favor of the “undue burden standard” first proposed by Justice Sandra Day O’Connor in her dissent in City of Akron vs. Akron Center for Reproductive Health in 1983.

The concept of “undue burden” was nothing new in Supreme Court jurisprudence although prior to the abortion debate it was primarily used in the commercial context. In 1946, it was used in a case involving “separate but equal” public transportation access in Virginia. In terms of constitutional jurisprudence, the undue burden standard stood on considerably stronger legs than trimesters and viability. In the Planned Parenthood decision, O’Connor wrote that the strict scrutiny of state laws related to abortion required of Roe should be relaxed in favor of the undue burden standard. This was a confusing, plurality decision although O’Connor’s majority decision is considered controlling. In his concurrence, Justice John Paul Stevens noted that an undue burden was one that “…is too severe, or that lacks a legitimate, rational justification.” Given this definition, one cannot argue- unless you are the most radical of pro-choice people- that a state lacks a legitimate or rational justification in protecting human life. If that were the case, then we would have maximum age laws and we may as well dismantle all police departments and rescind our homicide laws. Obviously, any state has a rational and justified reason for protecting human life. Therefore, there are two conundrums left. One is the practical limitations of “too severe,” and the other is a working definition of “human life” for when the state’s interests in protection are triggered.

In the Planned Parenthood vs. Casey decision, some aspects of the law were struck down while others were upheld. For example, parental notification laws were upheld provided there was a judicial bypass for a certain minority of cases of unwanted pregnancies. However, spousal notification was struck down. Informed consent requirements and waiting periods were also upheld. Some reporting requirements of abortion providers were deemed an “undue burden” while others were upheld. It is obvious that the goal of the pro-life movement is to make access to abortion more difficult, but they do so working within the framework of both Roe and Planned Parenthood. One needs to get over the pretense that abortion laws have any other purpose. But that does not necessarily make the effort wrong or evil. After all, we have gun control laws whose ostensible purpose is to make gun-related violence more difficult. In fact, we can say that most laws make it difficult to engage in or deter certain acts or behaviors the state determines to be detrimental to a functional society. Thus, laws that “make it more difficult” to obtain an abortion fall within this category and are no different than any other law in the philosophical sense.

But to make any law operational, definitions must be valid and clear lest it run the risk of being declared “too vague” for enforcement, or open to interpretation based on the prevailing whims at the time. States, like all of mankind, have struggled with a working definition of “human life” for legal purposes. With advanced technology, that definition has changed over time. Besides the now-defunct definitions of viability or quickening, any number of definitions can be used. Gross morphology can be one definition, or when brain function can be detected. When does the spinal cord form, when is the fetus sufficiently innervated, when does the fetus engage in “baby-like” behaviors in utero, and a host of other factors could conceivably be used. Instead, states like Texas determined that the age at which a fetus can “feel” pain is the determining factor.

And why do humans and all animals feel pain? The purpose of pain receptors is to provide the human body with a system designed to recoil and retract from stimuli that may cause it harm or death. According to the pro-choice camp, the belief that a fetus can feel pain is based on a single study by University of Tennessee professor Kanwaljeet Anand. In fact, the neurological pathways related to pain sensation begin to be formed at this stage, they concede, but they are not attached to the brain until about 4 weeks later. This is cutting the argument razor thin. In effect, they are saying the fetus can “sense” pain; they just do not have the capacity to know it is “pain.” As Anand’s studies note, a fetus at age 20 weeks reacts as any other human would react- by recoiling from pain. If it walks like a duck and quacks like a duck, chances are it is a duck. Recently, USA Today, the Los Angeles Times and the Chicago Tribune refused to run a print advertisement by a pro-life group showing a 20-week “fetus” in the hand of a grown human. They refused to run the ad saying it was “too controversial.” And what was the controversy? It was not a photo of some dismembered aborted fetus or any other grotesque depiction. The “controversy” was that the fetus looked too human. That is a sad commentary on liberals when they believe something that looks “too human” that is growing in another human is considered “controversial.”

From the legal standpoint, the 20-week line of demarcation for an increased role in the state’s interest in protecting that life should not be a problem under Planned Parenthood or Roe. Twenty weeks is 5 months which is the second trimester under Roe. It is, in fact, slightly more than the half way point of gestation. Surely, five months is more than adequate time for a woman to determine whether to continue or terminate that pregnancy. Unless you are one of those uneducated women who “didn’t know” they were pregnant until the baby comes out, 20 weeks is perfectly acceptable.

Regardless, all the name calling and disgusting protests by the pro-choice people in Texas notwithstanding, the Texas law had adequate safeguards- loopholes if you will- that allowed medically necessary abortions after the 20th week of gestation. Having read the actual law, one would think that a liberal state senator wrote it. That is, the Texas legislature was careful in how they wrote the law to provide exemptions. Therefore, it is hard to see how the law could even fail the most basic requirements of the undue burden standard. Up until 20 weeks of pregnancy, women in Texas and other states with similar laws can proceed with abortion decisions as before. It is only after 20 weeks that the state takes a greater interest in the developing human life in the uterus and this determination is made based on the scientific information available. Pro-choice groups argue that this is a slippery slope argument in that future technological advances may prove that pain can felt at an earlier stage of fetal development, if we adopt the pain definition. This is absurd. Humans have developed as they have for eons. One can reasonably suspect that a fetus in the woman in a cave in France before the dawn of civilization developed pain receptors at 20 weeks very much as a modern day fetus does.

Regarding some of the other abortion laws being considered or passed in other states regarding regulation of the abortion industry, again how can these be considered “undue burdens?” For example, informed consent and waiting periods are considered by some to be “undue.” Yet, any medical procedure- and abortion is a medical procedure- require informed consent and unless it is an emergency, most surgical procedures are scheduled days if not weeks in advance of the actual procedure. Ensuring that abortion providers are located near hospitals and such or inspection and licensing of abortion clinics is no different than an annual health inspection of a restaurant. In fact, one can reliably argue that it is more important since the risk of complication is greater than the risk of food poisoning at a restaurant with a malfunctioning refrigerator.

In the end, the “controversy” in Texas is no controversy at all. As many a liberal website notes, abortions after the 20th week are rare in their current incarnation under the law. If that is the case, then this is a philosophical and practical non-starter of an argument for liberals. In effect, they are arguing against a law that may rarely be enforced by their own concessions since abortion after 20 weeks is “rare.”

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