…. How might the Texas ban on 20-week abortions (SB 1) be received by the US Supreme Court, in light of relevant precedents? The arc of abortion jurisprudence in America has been, for better or worse, an exercise on the part of the justices in the majority (typically in sharply divided 5-4 decisions) to find by their lights an appropriate balance between the state’s interest in the lives of unborn children (“at all stages of pregnancy,” Gonzales v. Carhart) and a woman’s liberty interest in seeking an abortion. Justice Kennedy—whose vote is decisive at the moment for evaluating any limit on abortion—has been quite explicit that “balance” is the key aspiration for the Court’s efforts in this domain.
Justice Kennedy has also noted that the Court has not yet enumerated “an exhaustive list of state interests implicated by abortion” (Stenberg v. Carhart). Indeed, he said that it would be “inappropriate” for the Court to do so. Justice Kennedy has thus clearly signaled openness to the possibility of new state interests that might affect the calculus of competing claims in this area of the law.
Texas (along with several other states and the US House of Representatives) has recently identified a state interest in the unborn child never before considered, namely, its obligation in justice to protect unborn children capable of experiencing the excruciating pain involved in an abortion. Note, by the way, that states are free to legislate on the basis of this fact, even though it might be contested by certain experts advocating on behalf of the abortion rights movement. As Justice Kennedy pointed out in the 2007 case Gonzales v. Carhart, “Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.”
The capacity of unborn children to experience pain by 20 weeks’ gestation—confirmed by leading experts on all sides of the abortion dispute—is a decidedly new, and a deeply salient moral fact that weighs heavily in favor of the unborn child in the balance at the heart of the Court’s jurisprudence. It provides a novel, constitutionally significant interest that the state may invoke to justify its efforts to regulate the practice of abortion.
This new information about the nature of the unborn child forces us to confront the fact that she is “one of us” not merely insofar as she is a living (albeit immature and dependent) member of the human species, but also in that she experiences pain much as we do (perhaps even more acutely). This insight about who the unborn child is—never before considered by the Court—offers a new and overwhelming justification to limit abortions, certainly to the very modest extent that SB1 would….
Finally, given the import of his role as a swing Justice, it bears concluding with a brief speculative comment on how Anthony Kennedy might evaluate SB1. Despite his apparent unwillingness to overturn what he takes to be the “central holding of Roe v. Wade,” Justice Kennedy has affirmed every state and federal limit on abortion that he has ever considered, save one (a Pennsylvania law requiring spousal notification). Given his empathy for the vulnerable and his demonstrated willingness to give states latitude to act in defense of the unborn, it is highly likely that he would be satisfied that the state’s interest here justifies basic legal protections for unborn children who are able to feel pain.
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