NRL News

The Impact of Introducing the Pain-Capable Unborn Child Protection Act

by | Mar 26, 2011

By Dave Andrusko

Burke Balch, Director of NRLC's Robert Powell Center for Medical Ethics, Mary Spaulding Balch, NRLC Director of State Legislation (center), and Julie Schmit-Albin, executive director of Nebraska RTL.

The deluge of pro-life legislation we’ve seen introduced in states around the country have a multiplicity of objectives. We’ve talked about them at great length, but a headline on a story I read today reminded me of an important goal that we cannot emphasize enough: education.

The headline read, “States Looking to Change Definition of Late-Term Abortion.” That is both confusing and wrong on a number of levels, but is pervasive enough to require clarification.

What the story really is about is legislation introduced in 13 states that says you cannot abort a child at or past 20 weeks post-fertilization because a  litany of scientific studies have demonstrated that babies at this stage of development can experience pain. Nebraska was the trailblazer in passing the “Pain-Capable Unborn Child Protection Act.”

But wedged in there is a several-sided point that Mary Spaudling Balch, NRLC Director of State Legislation, has made repeatedly.

Pro-abortionists want to talk about “late-term” abortions (or abortions “late in pregnancy”) for a host of reasons, one of which is to leave the impression that there are only a handful of abortions at this stage and only a miniscule number of abortionists willing to perform them.

Neither is true!

Let me borrow from an extensive analysis done last year by NRLC.

First, the phrase “late-term abortion” has no fixed legal or medical meaning.  This distortion is in part deliberately engendered by pro-abortion groups, who use the phrase “late-term” as code for “third-trimester,” meaning 27 weeks LMP (about the seventh month and later).

It is further confusing because many Americans would most likely agree that any abortion performed after the midway point of a woman’s pregnancy (20 weeks LMP based on a standard 40-week pregnancy term) would qualify as “late abortions.”  Indeed, most Americans would likely consider all abortions performed in the fifth month or later (e.g., after 18 weeks) as “late abortions.”

Second, according to a May 2010 briefing by the Guttmacher Institute, 1.5% of the estimated more than 1.2 million elective abortions performed annually in the United States are on unborn children at 21 weeks LMP (19 weeks postfertilization) or older.  This translates to roughly 18,000 abortions annually – a substantial number of which probably occur at 22 weeks LMP or later, which is past the point that the best evidence indicates that the unborn child is fully capable of feeling pain (a point that may well occur earlier).

Third, the 2008 study, “Abortion in the United States: Incidence and Access to Services, 2005,” released by the Guttmacher Institute –which was originally founded as a special research affiliate of the Planned Parenthood Federation of America–found that, in 2005, there were at least 1,787 abortion providers in the United States.  (It is worth noting that submission for the Guttmacher study is voluntary.  As a result, Guttmacher projects estimates for nonresponders meaning that the figures cited are estimated calculations and therefore most likely represent minimum numbers and calculations.)

Of the 1,787 providers, the study found that “[t]wenty percent of providers offered abortions after 20 weeks [LMP], and only 8% at 24 weeks [LMP]…” This translates to at least 300 abortion providers who will perform abortions after 20 weeks LMP and of whom, 140 willing to perform abortions at 24 weeks LMP.

Assuming that the 8% of abortion providers willing to perform abortions at 24 weeks LMP would do so at 22 weeks LMP means there are at least 140 abortion providers willing to abort a pain-capable unborn children at 22 weeks LMP (20 weeks postfertilization).

“That more than 140 abortion providers are willing to kill unborn children who are capable of feeling the excruciating pain of abortion is a tragedy – a tragedy that we can easily stop in the state legislatures,” Spaulding Balch commented.

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