The following story, written by Hadley Arkes, professor at Amherst College, appeared August 14 on the blog site, The Catholic Thing.
In the last days of July, the Federal District Court in Arizona offered another lift to the pro-life movement when it refused to strike down H.B. 2036, signed into law in April by Governor Janice Brewer.
What brought the bill into court so quickly was a provision to bar abortions after twenty weeks out of a concern for the pain inflicted on the unborn child. In the preamble to the bill, the legislators noted the substantial “medical evidence that an unborn child by at least twenty weeks of gestation has the capacity to feel pain during an abortion.” The Act would then prohibit abortion after twenty weeks “except in cases of medical emergency.”
The Supreme Court has already indicated that it would be willing to sustain some restrictions on abortion at the point of “viability,” which can be reckoned these days at about 23-24 weeks.
For the partisans of abortion, it was bad enough that the Court has gone that far. But the bill passed in Arizona (along with comparable bills in several other states) threatened to leap over that marker and bar abortions even before the point of viability.
Hence the move into federal court. In the Gonzales case in 2007, the Supreme Court refused to strike down on its face the federal bill to bar “partial-birth abortions.” The Court would seriously crimp the litigating force of the abortion lobby by making it harder to rush immediately into a court instead of waiting for a real case with a woman actually denied an abortion under the law.
But in this case, the advocates of abortion argued that a ban on abortion at twenty weeks went well beyond anything permitted by the Supreme Court and therefore it had to be unconstitutional on its face.
But Judge James Teilborg, a Clinton appointee, rejected that argument. He pointed out that, even with a bar of some abortions at twenty weeks, “the ultimate decision to terminate her pregnancy” still lay with the pregnant woman, and so this arrangement need not run afoul of the lines set down by the Supreme Court.
This figure of twenty weeks has been floated for bills in Congress and the States, and yet it errs on the side of caution in its claims.
Vincent Collins, a professor of anesthesiology, summed up some findings in the mid-1980s: “Functioning neurological structures necessary for pain sensation are in place as early as 8 weeks, but certainly by 13-1/2 weeks.”
Professor (and later Judge) John Noonan argued in an essay in 1981 that “a pain mechanism is present in the fetus – possibly as early as day 56.” President Reagan seemed to pick up on Noonan when he remarked on the matter in a State of the Union Address in 1984, saying that doctors “confirm that when the lives of the unborn are snuffed out, they often feel pain, pain that is long and agonizing.”
Of course, the very fact that Mr. Reagan mentioned the matter was enough to set off a debate among the pundits on television as they sought to show that the Gipper was speaking frontier gibberish. And that in turn triggered hearings in the Senate Committee on the Judiciary in 1985 on the question of fetal pain.
During those hearings Daniel Robinson made one doctor from the medical school at Yale retreat from the claim that fetuses cannot feel pain before twelve weeks of gestation. As Robinson noted, “pain is surely one of the most primitive of sensations founded in the animal kingdom,” and it did not depend on the “cerebral cortex.” The “specific pathways carrying ‘pain’ information,” he said, are all “subcortical.”
And yet, we have found of late serious disagreements among our friends about the desirability of moving ahead with the kind of legislation passed in Arizona. One accomplished lawyer worries that the actual banning of abortion before the point of viability goes well beyond anything Justice Kennedy, the swing vote, is likely to tolerate.
The result, this lawyer fears, would be to strike down this law and entrench Roe v. Wade even more firmly. But we have a curious tendency, on the conservative side, not to force people to get more explicit about the premises on which they are acting and claim their rightful name.
Justice Kennedy recoiled from the brutal procedure in partial-birth abortion. To strike down the bill in Arizona would require him now to proclaim his utter indifference to a pain that cannot be denied, the pain of dismembering or poisoning a child in the womb.
He could get out of that problem by suggesting that the law could be saved by simply requiring that anesthetic be administered to the child. But it is striking – and telling – that the defenders of abortion have never sought to avoid the problem through that evident path, and the reason is obvious: They will do anything but concede that there is a real child, suffering pain, the victim of these “procedures.”
Justice Kennedy should be forced to face the same moral embarrassment. Even he may be reluctant to say that he doesn’t care if human beings are killed as long as they are anesthetized. And for all we know, that could be, for Kennedy, the move just too far.
It could be the moment that finally pushes him off that fence he has strained his art, for so many years now, to straddle.
To read original story, click here.
Why the pain threshold? If that were the real issue, then they’d simply supply pain killers with the abortion process. There is something else, but what is it?
I talked with Nellie Gray on the phone in the mid nineteen eighties, and she graciously hooked me up with a prolife organization. May her great soul rest in peace.
Hitler was able to conceal his holocaust through brutal suppression of dissent and total control over the press and broadcast media. The bulk of the population was kept in the dark about the cruelties that took place in remote locations behind barbed wire. The true horror was not revealed until after the war had ended. People reacted with disbelief that such abominations had been committed in the name of the German nation. By way of contrst, our very own holocaust is being perpetrated in plain view, hailed as a constitutional right, and celebrated under the Orwellian label “reproductive rights”. How many millions of the unborn are yet to be sacrificed on the altar of Moloch while good people stand by and yawn? The Germans can perhaps rightfully claim “we did not know!” What, pray tell, is our excuse?
Anton very nice post. God bless you.
To coin a phrase, Anton, Our neighborhood abortuaries are MacAuscwitzes.
For a non-religious, scientific site, see: ENDOWMENT for HUMAN DEVELOPMENT on the internet.
Watch the movies of developing babies at various stages.
At 8 weeks the baby is already determining right and left handedness.
How can any justify the murder of innocents for the covenience of another?
our society is schizo.
we convict scott peterson for murdering his wife AND her unborn child, but then say abortion is legal.
how can it be legal for the doctor to kill the life in the womb, but illegal for scott pterson to do so?
max maybe because he murdered the wife and since the wife did not have an abortion, they assume she wanted the baby to live….so perhaps that is why…..the wife is alive, so in their definition that is acceptable to imprison. Plus I don’t get the logic of your point but how did I get caught up in it? I’m sure your point was leaning toward a noble cause..the pro-life cause right? Well I am glad to know that you are pro-life.
Max is addressing consistency (or lack of it) in the law. Those who are sworn to enforce and uphold existing laws fail to recognize their own contradictions in the process.
thank you BARON as this is precisely the point i was trying to make.
if we say the life in the womb has rights, then he or she has rights whether the parents want to abort or not.
how can we convicvt scott peterson for killing, but then say abortion is okay? it’s not consistent.
Eternal rest grant unto Nellie Gray O Lord and let perpetual life shine upon her. May she rest in peace. Amen.
This new decision, as well as Roe v. Wade, are nothing more than a confirmation of the anceint Medieval concept of “quickening”, usually at sixth month of pregnancy, when the baby starts moving around a lot and kicking. In that ancient age, that’s how they determined the presence of human life. And yet feminists say these legal decisions moves women’s health “into the modern world”. Puhlease….
The ancients knew the presence of life existed in the womb from the beginning … just read what they wrote about it. The fable that medievals believed life begins at six months are just that, fables. Bank robbers today believe they didn’t do it … Denial is a potent form of deception.
A child intentionally aborted even at the moment of conception is the murder of an innocent, pain or no pain.
Don’t worry, Kennedy will find that NANCAN None (Nun) again who was once his teacher, and she will justify it for him.
Pray for his and her eternal souls.
God bless, yours in Their Hearts,
Kenneth M. Fisher
Abortionists and sodomites are the two riders of the Pale Horse of the Apocalypse (cf. Rev. 6:7-8).
OK, class, now I will provide you with the answer to “what is it, if not the pain threshold?”: Abortion is a blood sacrifice, a ritual act to a false god.