Communications Department

NRLC cites federal court findings to urge cosponsorship of Unborn Child Pain Awareness Act

Sep 1, 2004 | fetalpain

What appears below is a copy of a letter sent by the National Right to Life Committee (NRLC) to members of the U.S. House of Representatives on September 1, 2004, urging cosponsorship of the Unborn Child Pain Awareness Act (H.R. 4420).  An always-current list of House cosponsors of this bill, arranged by state, can be viewed by clicking here.

A similar letter was sent to U.S. Senate offices regarding the Senate companion bill, S. 2466.  An always-current listing of Senate cosponsors can be viewed by clicking here.

You can send an e-mail to urge any lawmaker to cosponsor this legislation (using a suggested text, your own words, or some combination), or to thank him or her for already cosponsoring it, by going to the Action Alert at the NRLC Legislative Action Center here.

For further information on this issue, see the NRLC website section on the pain of unborn children.

Dear Member of Congress:

The National Right to Life Committee urges you to add your name as a cosponsor to the Unborn Child Pain Awareness Act (H.R. 4420), if you have not already done so.

This legislation, introduced by Congressman Chris Smith on May 20, recognizes that under the legal policy imposed by the U.S. Supreme Court in cases such as Roe v. Wade and Stenberg v. Carhart, every day in the United States unborn children are subjected to trauma that causes them excruciating pain, and that would be illegal if inflicted on animals in commerce or research.

This bill would require every abortionist to provide, whenever a woman seeks an abortion past 20 weeks after fertilization, specified information about the capacity of her unborn child to experience pain during the abortion.  After that, the woman must either accept or refuse (by signing a form) the administration of pain-reducing drugs directly to the unborn child.  The woman’s decision regarding such drugs is entirely voluntary.  The bill would apply to all abortions past 20 weeks, regardless of the method used.

The Unborn Child Pain Awareness Act also contains a number of proposed congressional findings regarding the scientific evidence that unborn children would experience great pain during abortions at 20 weeks (and perhaps earlier).  The findings also cite a number of existing federal laws that seek to diminish the suffering of animals, such as restrictions on how livestock are slaughtered and restrictions on the use of animals in medical research.

In a Zogby poll conducted in April, 2004, the public supported “laws requiring that women who are 20 weeks or more along in their pregnancy be given information about fetal pain before having an abortion” by a 77-16 percent margin.

Congress took note of the pain inflicted by partial-birth abortion in the findings contained within the Partial-Birth Abortion Ban Act (Public Law 108-105), as follows:

The vast majority of babies killed during partial-birth abortions are alive until the end of the procedure.  It is a medical fact, however, that unborn infants at this stage can feel pain when subjected to painful stimuli and that their perception of this pain is even more intense than that of newborn infants and older children when subjected to the same stimuli.  Thus, during a partial-birth abortion procedure, the child will fully experience the pain associated with piercing his or her skull and sucking out his or her brain.

In order to evaluate that congressional finding, expert testimony from both sides was heard this summer in a trial held in the U.S. District Court for the Southern District of New York, as part of a legal challenge to the law brought by the National Abortion Federation and the ACLU.  In his ruling issued on August 26, U.S. District Judge Richard C. Casey summarized this testimony as follows:

D&X procedure [partial-birth abortion] may subject fetuses beyond twenty weeks’ gestational age to “prolonged and excruciating pain.”  Because the density of receptors is greater in the fetal skin at about twenty weeks of gestation, and because the mechanisms that inhibit and modulate the perception of pain do not develop until after thirty-two to thirty-four weeks’ gestation, there was testimony that a fetus likely feels severe pain while the procedure is being performed. . . When questioned about whether they spoke to their patients about fetal pain, Plaintiffs’ answers ranged from uncertainty about whether fetuses feel pain to a lack of caring on the matter. . . . Most of Plaintiffs’ experts acknowledged that they do not describe to their patients what the D&E and D&X [partial-birth abortion] procedures entail in clear and precise terms.

After evaluating the pertinent expert testimony from all sides, Judge Casey made certain formal “findings of fact,” among these:

The Court finds that the testimony at trial and before Congress establishes that D&X [partial-birth abortion] is a gruesome, brutal, barbaric, and uncivilized medical procedure.  Dr. Anand’s testimony, which went unrebutted by Plaintiffs, is credible evidence that D&X abortions subject fetuses to severe pain.  Notwithstanding this evidence, some of Plaintiffs’ experts testified that fetal pain does not concern them, and that some do not convey to their patients that their fetuses may undergo severe pain during a D&X.

Despite these and other damning findings regarding partial-birth abortion, Judge Casey ruled that the Partial-Birth Abortion Ban Act may not be enforced because he said it conflicts with the Supreme Court’s 5-to-4 ruling in Stenberg v. Carhart (2000).  “The Supreme Court in Stenberg informed us that this gruesome procedure may be outlawed only if there exists a medical consensus that there is no circumstance in which any women could potentially benefit from it,” Judge Casey wrote.

It is expected that this ruling will be appealed, as will other rulings on the law by other federal courts, and the law is likely to ultimately be reviewed by the U.S. Supreme Court.   In the meantime, however, Congress can and should act to prevent, to the extent possible, terrible suffering from being inflicted on unborn children by partial-birth abortion AND by “D&E” procedures that dismember them by brute force while they are still alive.  H.R. 4420 would be a worthwhile step in that direction.

The Unborn Child Pain Awareness Act has also been endorsed by the Family Research Council, the Christian Medical Association, the Southern Baptist Convention (Ethics and Religious Liberty Commission), and Concerned Women for America, among others.  Please add your name as a cosponsor of the Unborn Child Pain Awareness Act (H.R. 4420).


Douglas Johnson
NRLC Legislative Director

Categories: fetalpain
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