The United States Senate now has before it the Pain Capable Unborn Child Protection Act. The bill, which passed the House in May by a 242-184 vote, bans abortions after 20 weeks gestation. There’s now a broad consensus that the fetus feels pain by this point in its development, if not much earlier.
South Carolina Senator Lindsay Graham introduced this legislation. Over the past five years, fourteen states have passed bills that are virtually identical to Senator Graham’s Pain Capable Act. Fetal Pain bills are currently in effect in 11 states: Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Nebraska, North Carolina, North Dakota, Texas, and West Virginia. Opponents to these bills routinely argue they’ll adversely affect women’s health. But, unlike most laws limiting abortion, state fetal pain laws have rarely been challenged in court.
These are good laws. So good that a movement that’s super-sensitive about any challenge to the right to abortion, and which claims the sky will fall in terms of women’s health when such bans take effect, hasn’t seen fit to to seek to overturn them.
These are also popular bills. Eighty-four percent of Americans say they support measures that stop abortion after the first three months of pregnancy.
A 2-year-old Texas law is instructive here. Two summers ago, State Senator Wendy Davis conducted her infamous filibuster in pink sneakers to stop passage of a pro-life law — HB2 — whose centerpiece was a five-month abortion ban. Governor Rick Perry called a special session in which Texas lawmakers passed this strong legislation that includes a requirement that abortion providers maintain admitting privileges at local hospitals and another section mandating that abortion facilities meet the same standards as hospital surgery centers in terms of equipment, staffing and building specifications.
These provisions of HB2 have faced lawsuits. But not the five-month abortion ban. It has been law in Texas since October, 2013 and has never been challenged.
Casey Matttox, a senior attorney at Alliance Defending Freedom wrote at Redstate that abortion advocates are letting these laws to go unchallenged because they fear their prospects at the U.S. Supreme Court. They are, he writes, “willing to allow these laws to stand to avoid creating an opportunity for the justices to weigh in.”
Casey Mattox also says the abortion industry appears not to believe its own rhetoric on these bills that limit abortion based on the fetus’s ability to feel pain. He wrote, “Their decision not to challenge these laws demonstrates not only that the claims of threats to women’s health are not true, but also that even the abortionists making those exaggerated claims really don’t believe their own press releases.”
Of the federal Pain Capable bill, Marjorie Dannenfelser, president of the national pro-life group, Susan B. Anthony’s List, voiced what pro-abortion groups fear: “This is the most important piece of legislation in 40 years, since Roe vs. Wade.”
Eventually, it could mean the end of the Roe regime.