NRL News

Why pro-lifers are confident in the face of a decision overturning Idaho’s Pain-Capable Unborn Child Protection Act

by | Mar 19, 2013

By Dave Andrusko

U.S. District Judge B. Lynn Winmill

U.S. District Judge B. Lynn Winmill

The headline on the article at the pro-abortion site read,” Why Are Anti-Choicers Celebrating the Death of the Idaho 20-Week Ban?” Bearing in mind that writers ordinarily don’t compose their own headlines, my guess is that Robin Marty would’ve offered a more nuanced summary.

“The Idaho 20-Week Ban” Marty is talking about is Idaho’s Pain-Capable Unborn Child Protection Act.” Earlier this month a federal district judge– B. Lynn Winmill—slapped down that law (passed in 2011) and another abortion law enacted years and years before. We’ve discussed Judge Winmill’s decision in-depth at,, and

For our purposes here, it’s important to understand that every objection Marty offers why pro-lifers shouldn’t be overly confident either is easily answered or misunderstands pro-life legislation and litigation. Here are four points.

#1. No pro-lifer over the age of reason assumed the law would sail through the judicial channels. Idaho’s Pain-Capable Unborn Child Protection Act would be heard by the notorious 9th Circuit Court of Appeals, first by a three-judge panel, and then, we trust, by the full circuit. We fully expected what the panel handed down, although it is fascinating to note that the panel did not go as far as Judge Winmill who struggled to fit various square pegs into round holes.

#2. Marty assures her pro-abortion readership that Justice Anthony Kennedy, who likely would be the swing vote should the case (cases) reach the High Court wouldn’t want as his legacy upholding a law that “overturned Roe.” Upholding Idaho’s law wouldn’t “overturn” Roe, of course. Roe has already been modified by Planned Parenthood v. Casey and upholding the Pain-Capable Unborn Child Protection Act would mean that the justices recognize that science has not stood still over the past four decades. In that vein, it is not (contra Marty) only “anti-choice physicians” who realize the unborn can experience pain by 20 weeks after fertilization. The law asks state legislatures–and eventually the Supreme Court–to recognize a “compelling state interest” in protecting the life of that pain-capable unborn child.

#3. It is deeply ironic that Marty raises the possibility that there won’t be more decisions on the Pain-Capable Unborn Children Act—and therefore no “controversy” for the Supreme Court to resolve. Why ironic? Because the pro-abortion community has been very, very reluctant to challenge the Act, far more worried than Marty is that Kennedy would uphold it. (You’d read over and over in the pro-abortion press that the plaintiff in the Idaho case was exactly the wrong person to bring a challenge.) I asked Mary Spaulding Balch, J.D., NRLC’s Director of State Legislation about this.

She told NRL News Today

“There are several reasons for which the U.S. Supreme Court accepts a case for review. It is true that one reason is to resolve a conflict of law among the lower appellate courts. Another reason is when a state court has decided a federal question in a way that conflicts with another court. And there is a third reason. When a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by the U.S. Supreme Court, a petition for a writ can be granted.

If it is the case that no other state’s Pain-Capable Unborn Child Protection Act had yet to be challenged in federal court by the time the Idaho case is decided by the ninth circuit, then the U.S. Supreme Court can grant the petition for certiorari because it raises an important question.

The Supreme Court has never previously had occasion to consider whether the fact that after a certain stage of development the unborn child is capable of experiencing pain makes the State’s interest in unborn life compelling after that point. The State’s assertion of such an interest makes this a case of first impression and one of significant importance to be addressed by the United States Supreme Court.

Recognizing a compelling state interest in the unborn child who is capable of experiencing pain would not require the Court to overturn, but only to supplement, its prior recognition of a compelling state interest in the unborn child after viability. This is critically important to understand.

#4. Fourth and finally, time is on our side. Marty channels the pro-abortion mantra that the assertion that the unborn can feel pain at 20 weeks post-fertilization has been “disproven.” The usual medical suspects say either no, or who knows? There’s a surprise. But every month that goes by offers the opportunity for additional investigation demonstrating more and more conclusively that the unborn can experience the most excruciating pain. (See As the first sentence at this fine site states, “A wealth of anatomical, behavioral and physiological evidence shows that the developing human fetus is capable of experiencing tremendous pain by 20 weeks post-fertilization.”

Eight states have passed a Pain-Capable Unborn Children Act. We can expect more to come.

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Categories: Judicial