The Pain-Capable Unborn Child Protection Act, which bans medically unnecessary abortions after 20 weeks, is expected to come to a vote this week in the House of Representatives. Several states have enacted similar bans (some of which are tied up in legal challenges), but this one would apply nationwide.
The legislation has prompted a broader discussion within the pro-life movement about the wisdom of the "pain-based" approach. Without naming names, I have noticed that some pro-life leaders are skeptical. I ultimately come down in favor of 20-week bans, but the concerns are legitimate and thoughtful. Below, I outline what I perceive the major concerns to be, and my responses.
1. It shouldn't be about pain.
Pro-life advocates naturally do not believe that only babies who feel pain should be protected from abortion. But some have expressed concern that this legislation sends the wrong message. By focusing on the ability to feel pain, they say, we do a disservice to younger babies. We do not want to give the impression that it is morally acceptable to kill as long as the victim doesn't feel it.
History may be a guide here. Similar concerns were expressed about the partial-birth abortion ban; after all, we don't think that abortion is acceptable when the baby's entire body is in the womb, either. But the PBA ban got people to think about the brutal nature of abortion in general, and changed a lot of hearts and minds. The PBA ban admittedly didn't prevent many abortions, and neither will a 20-week ban, since most abortions occur earlier. The real value is educational value.
Rep. Franks referred to the Gosnell trial, which prompted the legislation, as a "teachable moment." The legislation itself is likewise a teachable moment.
2. 20 weeks isn't the right cutoff.
There is a lot of debate about when babies begin to feel pain. The 20-week mark is based on a wealth of scientific studies, which can be found here.
Of course, abortion advocates have their own experts, who put the ability to feel pain later. It's worth noting that they disagree substantially with one another. The American College of Obstetricians and Gynecologists, which is openly pro-choice and includes abortionists in its membership, says that fetal pain is "unlikely before the third trimester," or 28 weeks. The British Royal College of Obstetricians and Gynecologists, by contrast, points to 24 weeks as the key. And many abortion advocates like to cite a single 2011 study which put the ability to feel pain at a whopping 35 weeks, suggesting that even many premature infants are numb to pain. At the end of the day, all they can agree on is that those mean anti-choicers are definitely wrong about the science.
Meanwhile, some pro-lifers are concerned that as research tools improve, we will find evidence that fetal pain begins much earlier than 20 weeks. In fact, one neurobiologist testified that unborn babies may be able to feel pain late in the first trimester. What happens if we pass the bill, and then a few years down the road learn that it isn't actually protecting all pain-capable unborn children?
To that I say: I hope that's exactly what does happen. The pro-life movement should be prepared to educate the public if strong new evidence arises, and amend the legislation. Being pro-science means you may not get it right the first time, every time. We should be willing to admit the mistake and fix it. Done right, that can go a long way toward earning the public's trust.
3. This is a waste of time because it won't pass the Senate.
True, it probably won't pass the Senate, which is not majority pro-life. But we can use this to highlight how extreme these "pro-choice" politicians are; most pro-choice Americans support bans on late-term abortions. And again, the getting-people-to-think component is there whether or not it passes.
4. This is a waste of time because the courts will strike it down.
Don't be so sure. People said the same thing about the partial-birth abortion ban, and the Supreme Court wound up finding that the interest in distinguishing between abortion and infanticide was strong enough to justify the legislation. The Supreme Court has never heard the fetal pain argument; it could very well find that this, too, is a strong enough interest. It all comes down to the highly unpredictable Justice Kennedy.