The National Catholic Review
Where will the next great battle be fought in the struggle for the hearts and minds of the American public regarding abortion? Perhaps it will be ignited by the recent proposal of a law that would oblige abortion providers to tell women about the pain that unborn children experience during this procedure. But could such a law survive the inevitable onslaught of legal challenges? And even if it could, would it truly help the unborn?

Looking for a Win

In 2003, the pro-life movement thought it had won a great victory when Congress banned partial-birth abortion, a gruesome procedure that kills partially delivered babies just moments before birth. But three courts have now found the ban unconstitutional, and the current U.S. Supreme Court is likely to agree.

On the heels of these losses, pro-life supporters are looking for a new way to aid the unborn that can survive the scrutiny of the courts. Enter the Unborn Child Pain Awareness Act of 2005.The act’s sponsors, Senator Sam Brownback (Republican of Kansas) and Congressman Christopher H. Smith (Republican of New Jersey), introduced the bill to Congress in January of this year. They have faith that this law will be passed.

Jesus once said, Then you will know the truth, and the truth will set you free (Jn 8:32). The act’s supporters hold a similar hope. The act educates the public and helps women rethink a possible decision to have an abortion, says Steven Ertelt, the editor of LifeNews.com, a pro-life Internet news outlet.

Understanding the Proposed Law

Essentially, the act would force abortion providers to give women oral and written information about fetal pain before they choose a late-term abortion. A provider must tell a woman who is considering such an abortion that Congress passed this law because it believes unborn children of over 20 weeks gestational age can experience pain during an abortion. The provider must also inform the woman of her right to arrange anesthesia for her child before the painful abortion process begins.

The act would allow the abortion provider to offer a woman his own opinion about fetal pain, even if he disagrees with Congress. But if the woman requests anesthesia for her child, the provider must help fulfill that request or else refuse to perform the abortion. The proposed act has teeth. A provider who performs an abortion while ignoring the act’s requirements can be sued by the woman (or her parents, if she is a minor). A provider who fails to comply will also face the loss of his or her state license to perform abortions.

The act has not yet become law. Though the bill has garnered over 30 co-sponsors, it will not receive a vote until two separate congressional committees examine it. This may take time. Congress considered an identical bill last year, but it never emerged from either the House or the Senate committee before Congress adjourned in December. But with a new, more pro-life Congress, the bill should see the light of day. Pro-life advocates consider it a top legislative priority that has already been endorsed by President Bush. But pro-abortion groups vow to fight the act on various fronts. Planned Parenthood, the world’s largest sponsor of abortion, claims that the bill is based on speculation and inference.

Excruciating Pain’

For years, Congress has passed laws requiring the humane killing of animals. Similarly, the Unborn Child Pain Awareness Act will foster the humane killing of human babies during abortions. But does medical science really support Congress’s conclusions about fetal pain?

Pro-abortion groups have already accused Congress of deeming facts [about fetal pain] into existence and trying to pass a law of dubious constitutionality. These tactics have worked in the courts against the ban on partial-birth abortion. But they may not succeed here. There is too much medical evidence supporting the reality of fetal pain. In the past decade, various experts have testified before Congress on this issue. Some believe that unborn children of even less than six weeks gestational age can experience pain. In any case, most experts agree that, by 20 weeks of gestation, fetuses have developed the necessary neuro-physiological systems to feel pain.

Here is how the pain process works. An unborn child must develop key aspects of the body’s nervous system in order to feel pain. As early as seven weeks of gestation (and possibly earlier), the child develops nociceptorspain receptors that allow a signal of pain to be received by the child’s body and transmitted to the spinal cord and brain. The part of the brain known as the thalamus registers the signal and identifies it as painful. The thalamus then passes the signal to the child’s motor nerves, where various reflex reactions take place. The child feels the pain, leading to increases in blood pressure, heart rate and key hormone levels.

The pain experienced by an unborn child is probably more intense than that felt by born infants or adults. Experts told Congress that after 20 weeks of gestation, an unborn child may experience relatively greater pain, because the child has not yet developed key inhibitory fibers to block some of the pain. In other words, there is no safety valve that lessens the amount of pain felt by the child.

But some abortion physicians claim that unborn children cannot feel pain. Most of these doctors agree that theoretically an older fetus has sufficient neurological development to feel pain. They argue, however, that the unborn child cannot truly experience the feeling of pain until much later (if at all), when the child achieves consciousness or self-awareness. This philosophical belief cannot be measured and ignores the most likely conclusion indicated by the evidence: unborn children do feel pain.

As a second line of defense, some abortion providers argue that anesthesia given to a woman before a late-term abortion will protect her child from pain. But various anesthesiologists testified before Congress specifically to dispel this myth. In fact, an unborn child will not receive any real pain relief from anesthesia administered to the mother. Instead, the child must receive direct anesthesia to relieve the excruciating pain. In the face of this brutal reality, many in Congress believe it is time to pass a national fetal pain law.

Can the Act Survive in the Courts?

Unborn children do not have a voice, but they are young members of the human family, Senator Brownback has argued. It is time to look at the unborn child, and recognize that it is really a young human, who can feel pain and should be treated with care.

But even if Senator Brownback’s bill passes, its final destiny will remain uncertain for some time. Supporters of the partial-birth abortion ban recently learned this difficult lesson when three federal judges nullified their hard work. But pro-life supporters have reason to hope that the proposed law will not suffer a similar fate. First, some courts already have agreed that the government has a legitimate interest in reducing the suffering of potential human life within the womb. This is similar to Congress’s interest in preventing the inflicting of gratuitous pain on animals. This legitimate interest provides legislators with the authority to act.

Second, the proposed act does not interfere with a woman’s right to abortionit allows her to make an informed choice. The woman is free to ignore Congress’s opinion if she chooses. She may still abort her child without requesting anesthesia. Thus, the courts should not view the act as placing a substantial obstacle in the way of a woman’s decision to abort.

Third, compelling evidence supports Congress’s conclusion that unborn children can feel pain during an abortion. In contrast, Congress’s controversial findings regarding partial-birth abortion have been highly criticized in the courts. But the reliable medical data documenting the existence of fetal pain provides Congress with a strong basis from which to legislate.

The act’s biggest weakness, however, is its lack of a health exception. This exception would allow abortion providers to choose not to inform some women about fetal pain because of concerns about the woman’s emotional or psychological health. The act’s sponsors do not believe such an exception is necessary, because it would give abortion providers the means to avoid the law without consequence. This type of broad health exception has been used by providers to justify performing abortions even on viable babies late in a woman’s pregnancy.

The absence of a broad health exception in the partial-birth abortion ban helped persuade three federal judges to find it unconstitutional. Those judges considered that the lack of the exception created a greater health risk for women. A similar fate could await the Unborn Child Pain Awareness Act. Yet this type of informed-consent law in no way threatens the health of women. Thus, courts will probably find that a health exception is unneeded under these circumstances.

For all these reasons, it is unlikely that the act will be struck down in the courts.

Three Major Benefits

Critics may legitimately wonder whether the Unborn Child Pain Awareness Act compromises the larger pro-life movement. By legislating the humane killing of unborn children, the act may signal an acceptance of abortion that ultimately undercuts the more important pro-life goal of making abortion illegal. Yet with abortion likely to remain legal for the foreseeable future, supporters of the act are counting on three major benefits.

First, thousands of unborn children who are killed by late-term abortion will suffer less pain at the hands of their executioners. All abortion is violent and cruel; yet forcing these unborn children to suffer excruciating pain at the end of their short lives is yet another cruel injustice.

Second, more women seeking abortion will realize that their unborn children are capable of feeling pain. This fact alone may convince some of these women to change their minds about the abortion and thereby save the lives of many unborn babies.

Third, as this issue is debated in Congress and in the media, the pro-life movement will come closer to its goal of educating the American people on the horror of abortion. As the reality of fetal pain becomes known, more decent Americans will continue to develop a pro-life attitude that may ultimately lead to the end of abortion.

Blessed Mother Teresa of Calcutta once explained:

How do we persuade a woman not to have an abortion? As always, we must persuade her with love, and we remind ourselves that love means being willing to give until it hurts. Jesus gave even his life to love us. So, the mother who is thinking of abortion should be helped to love, that is, to give until it hurts her plans, or her free time, to respect the life of her child.

If the Unborn Child Pain Awareness Act even begins to fulfill Mother Teresa’s words, then it will have achieved a mighty purpose. Through the act, a mother seeking a late-term abortion would learn the truth about the fragile humanity of her unborn child. By grace, this truth might help her give until it hurts and bestow a great present upon the innocent baby in her womb: the gift of life.

Antony Barone Kolenc is assistant professor of law at the U.S. Air Force Academy in Colorado Springs, Colo.

Comments

Mary Ann M. Schoettly | 9/25/2005 - 5:24pm
Here I was, expecting a nice balanced discussion of the proposed law requiring abortion providers to give women information about fetal pain before performing a late-term abortion, and what did I get? I got a pro-birth (no, not "pro-life") lawyer, no less, using all of the biased rhetoric of the so called pro-life movement.

I abhor the killing of the un-born. I abhor even more the thought that any one of God's littlest ones would be in pain, even for a moment. However, could we please hear from biologists, neo-natalists, and researchers in the field who can provide research-based and documented, non-emotional testimony on these issues? All I found here was another male voice advising women to go ahead and suck it up and "give until it hurts."

When are our men going to "give until it hurts" and provide support, counseling, shelter, and medical attention for women who need (obviously - since they "want" an abortion) all of the help that we can provide? When are they going to stop making women pregnant and then acting like she got that way by herself? It seems very easy to advise others to "give until it hurts." Mother Theresa had every right to give that advice. SHE was willing to walk with others "until it hurt" herself. Her pro-life stance included everyone. She would have included the mothers as well as the unborn.

Mary Ann M. Schoettly | 9/25/2005 - 5:24pm
Here I was, expecting a nice balanced discussion of the proposed law requiring abortion providers to give women information about fetal pain before performing a late-term abortion, and what did I get? I got a pro-birth (no, not "pro-life") lawyer, no less, using all of the biased rhetoric of the so called pro-life movement.

I abhor the killing of the un-born. I abhor even more the thought that any one of God's littlest ones would be in pain, even for a moment. However, could we please hear from biologists, neo-natalists, and researchers in the field who can provide research-based and documented, non-emotional testimony on these issues? All I found here was another male voice advising women to go ahead and suck it up and "give until it hurts."

When are our men going to "give until it hurts" and provide support, counseling, shelter, and medical attention for women who need (obviously - since they "want" an abortion) all of the help that we can provide? When are they going to stop making women pregnant and then acting like she got that way by herself? It seems very easy to advise others to "give until it hurts." Mother Theresa had every right to give that advice. SHE was willing to walk with others "until it hurt" herself. Her pro-life stance included everyone. She would have included the mothers as well as the unborn.