Most State 'Fetal Pain' Bills Yet To Face Court Challenges

August 14, 2012 — Several states have enacted abortion bans later in pregnancy based on the disputed theory that a fetus can feel pain after 20 weeks of gestation, but only one has been challenged in court, Politico reports.

Although congressional attempts to enact so-called "fetal pain" legislation have stalled, abortion-rights opponents have found a foothold in conservative state legislatures since early 2010, resulting in the passage of measures in Alabama, Arizona, Georgia, Idaho, Indiana, Kansas, Louisiana, Nebraska, and Oklahoma. Earlier this month, an appeals court issued a temporary injunction against the Arizona law after an abortion-rights group and three physicians challenged the measure.

The American College of Obstetricians and Gynecologists says there is no legitimate scientific evidence that fetuses can feel pain at 20 weeks. Despite this, the laws cite the "finding" that fetuses are capable of feeling pain at that point.

Politico reports that laws banning abortion before viability also directly conflict with Roe v. Wade. Additionally, the state laws' exceptions to protect a woman's health are typically far narrower than what is required under Roe and its progeny. Further, most of the state laws do not allow exceptions for severe fetal anomalies, which often cannot be detected until after 20 weeks of pregnancy.

Comparisons to 'Partial-Birth Abortion' Strategy

The emphasis on "fetal pain" mirrors the strategy that abortion-rights opponents used in enacting a ban on the procedure they call "partial-birth abortion," according to Politico. In both cases, they have deliberately chosen words and imagery -- such as "gruesome," "excruciating" and "pain capable-unborn children" -- that make people uneasy.

"The ability to mobilize around this idea (of fetal pain) was such as easy call," Marjorie Dannenfelser, president of the antiabortion group Susan B. Anthony List, said.

The sole legal challenge to fetal pain laws to date runs counter to the numerous lawsuits that have been filed against partial-birth abortion bans. The makeup of the Supreme Court leaves much uncertainty around the outcome of any challenge to fetal pain laws, Politico notes.

"There's no question that this Supreme Court as remade by [President] George [W.] Bush is very hostile to reproductive rights," Donna Crane, policy director for NARAL Pro-Choice America, said (Smith, Politico, 8/13).