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Why Objections to the Pain-Capable Unborn Child Protection Act Fail

by | Apr 19, 2012

By Dave Andrusko

Prof. Teresa Collett

Today and tomorrow we’re running stories about a very, very important issue: ensuring that unborn children capable of experiencing pain are protected from abortion. National Right to Life has led the way by providing model legislation—the Pain-Capable Unborn Child Protection Act—which Nebraska, Kansas, Oklahoma, Alabama, and Idaho have already made the law of their states.  Georgia has passed a slightly modified version which is on the desk of Gov. Nathan Deal.

In addition, the ”District of Columbia Pain-Capable Unborn Child Protection Act “ has been introduced in the House and Senate.  In this bill, Congress would declare that at least by 20 weeks after fertilization, an unborn child has the capacity to experience pain — and, on that basis, the bill would prohibit abortions within the Federal District (except when acute physical problems endanger the life of the mother) from that point on (from the beginning of the sixth month, in layperson’s terminology). For an update on this important legislation,  go to www.capwiz.com/nrlc/issues/alert/?alertid=60793686&type=CO.

Teresa Collett, professor of law at the University of St. Thomas School of Law, has written a thoughtful overview explaining why such laws should be passed and why the most common objections are not persuasive. “Protecting Unborn Children from Pain” can be read at  www.thepublicdiscourse.com/2012/04/5176.

If you’ve followed the debate as discussed in this space and in National Right to Life News, you know (as Prof. Collett observes) that “some philosophers and doctors dispute that the unborn child can ‘feel’ pain prior to birth.” At the heart of their objection is the insistence that “pain” requires “self-awareness,” which, if true, would tell doctors that they don’t have to anesthetize newborn children during surgery “notwithstanding the child’s screams and struggles.” Fortunately, this thinking, which was once pervasive, has been discarded.

Collett then explains how other doctors and scientists “argue that self-awareness is not the standard used to determine whether comatose or profoundly disabled individuals feel pain. In these cases observed physiological and behavioral responses to stimuli are accepted as reliable indicators of pain. Similarly, physiological and behavioral responses to noxious stimuli observed in the unborn should be accepted as evidence that they feel pain.”

And the unborn “have been observed to move away from needles and other sharp objects inserted into the womb, as stress hormones flood their tiny bodies,” she writes. And for this and other reasons, “use of fetal anesthetic is now routine for perinatal surgeries.”

Prof. Collett eloquently rebuts the second primary argument—that “the Constitution does not permit states to limit access to abortions merely to prevent inflicting pain on a pre-viable fetus.” Her reasoning is so tight that you will want to read her explanation for yourself. What you will see is that the Pain-Capable Unborn Child Protection Acts “seek to establish a separate and independent state interest in preserving the lives of unborn children at the point when they are capable of feeling pain.”

“Protecting Unborn Children from Pain” can be read here.

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Categories: Legislation