NRL News

Why Pro-Abortionists Aren’t Challenging the Pain-Capable Unborn Child Protection Act in Court

by | Apr 21, 2011

By Dave Andrusko

Remember the famous “dog that didn’t bark” clue from the Arthur Conan Doyle’s story, “Silver Blaze”? Sherlock Holmes was able to deduce the villain because it had to be someone the guard dog was familiar with, else he would have barked. The non-event was the key to tracking down the killer.

So what about the Abortion Establishment that doesn’t howl its way into court to challenge Nebraska’s Pain-Capable Unborn Child Protection Act? What does this non-event tell us? There are at least two explanations, both found in a story that appears in POLITICO today, “The Abortion Fight that Isn’t.”

First, there is the sneering dismissal. They’re not about to let pro-lifers dictate what they do!

“We don’t jump just because the anti-choice movement jumps,” says [Center for Reproductive Rights President Nancy] Northrup, whose group currently has 10 legal challenges pending across the country. “We’re focused on pursuing cases that ensure that women have access to all abortion services. They’re trying to move the agenda to a small percentage of cases, but we’re not fighting on their turf.”

Then, in the next sentence, comes the moment of truth, courtesy of the story’s author, Sarah Kliff: “But the turf of abortion opponents is growing.” She’s referring to the consequences of last November’s elections which greatly increased the number of pro-life legislators, governors, and states in which pro-lifers were in control of both Houses working with a sympathetic governor.

Which leads us to the bulk of the explanation why pro-abortionists are so quiet even as the Pain-Capable Unborn Child Protection Act has been duplicated in 13 states with three (Kansas and Idaho and Oklahoma) having signed them into law, and more likely to come:

“The reason: There’s a decent chance they’d lose.”

You can read Kliff’s piece which spells out why this is the case. So let me make just two additional points.

Kliff liberally quotes Mary Spaulding Balch, JD, National Right to Life Director of State Legislation, whom Kliff correctly describes as the “driving force” behind this (as well as other kinds of pro-life) legislation.

“This is one that the pro-life movement would like to see before the Supreme Court,” Spaulding Balch says. “I do think that this raises a new issue that has not been presented to the court and comes up with information that was not available in 1973 [when the Court decided on Roe].”

Kliff summarizes that as “new legal, political and scientific developments.” That would include, for example, language found both in the minority opinion of the last abortion case pro-lifers lost [Stenberg v.Carhart] and in the majority opinion in the most recent case, which we won [Gonzalez v. Carhart]. Clearly five members of the Court are signaling they are open to new information.

Which would include a bevy of studies demonstrating that the unborn child is capable of experiencing pain by 20 weeks post-fertilization. Naturally, pro-abortionists dispute that, but with the solid scientific foundation that was laid in legislative hearings, I’ll take my chances any day. (See

It’s important to remember that the idea that an unborn child at this stage could experience unimaginable pain was an intuition in 1973—the tools to demonstrate this conclusively were not yet available– just as there weren’t sonograms attached to refrigerators around the world, courtesy of the widespread use of sonography, 38 years ago.

Kliff observes, “But so far, abortion rights groups have not taken the bait [challenged the Nebraska law in court],” which is true enough. As Spaulding Balch said, “I was surprised it wasn’t challenged, and I would like to see that.”

But how long that remains the case is anyone’s guess.

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