Why Big Abortion is afraid to challenge fetal pain laws

Almost without exception, the abortion industry drags every law that is even remotely Pro-Life to court.  Take House Bill 2, the 2013 Pro-Life Omnibus Bill that passed in Texas.  Almost every single provision of the multi-faceted law has suffered (and thus far overcome) an onslaught of stalls and legal tactics vehemently hurled by the abortion industry, most recently with the Supreme Court decision to enjoin two provisions of the law until they reconvene.  Every major premise of the law has been challenged.

Except, that is, for the centerpiece victory of the legislation: a ban on abortions after 20 weeks, which protects pain-capable preborn children from experiencing the unimaginable pain of a late-term dismemberment abortion.  This is the victory that launched HB 2 into the national spotlight, and lent celebrity status to the law’s pink sneaker-clad filibusterer.  But the abortion industry’s arsenal of funding and legal prowess has left this major preborn pain victory totally untouched.

And Texas is not an anomaly in that regard: In the 13 other states that have introduced such legislation in the past five years, only 3 have faced legal challenges from the abortion industry.  In Georgia, the challenging abortionist specifically asked that the court not rule on “any federal constitutional questions.”  The other two cases brought against preborn pain laws, in Arizona and Idaho, respectively, were enjoined by the U.S. Court of Appeals for the Ninth Circuit.  But all the rest have gone into effect without being stifled.  According to Alliance Defending Freedom Senior Counsel Casey Mattox:

Laws like the federal Pain Capable Unborn Child Protection Act are currently in effect in at least 11 states without challenge: Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Nebraska, North Carolina, North Dakota, Texas, and West Virginia. (Emphasis added)

Although opponents compulsively fear-monger about the so-called devastating effect this type legislation supposedly has on “women’s health” (the standby excuse of abortion advocates who lack substantive arguments), they have done precious little to combat the perceived threat.  In light of their challenge-happy posture toward Pro-Life legislation, what makes preborn pain legislation a Pandora’s box to be feared by the abortion industry?

According to Thomas Messner, a Pro-Life legal scholar at the Charlotte Lozier Institute who has written extensively on the subject, the answer lies in the 20-week ban’s inextricable correlation to a federal mandate that states not prohibit abortion prior to viability – that is, the point at which he or she could survive outside the womb if delivered.  Discussing how the viability rule is related to the 20 week rule, Messner writes:

[T]he problem for Planned Parenthood and other abortion advocates is that the viability rule is indefensible both morally and as a matter of constitutional law.  Because these laws [pain-capable protection laws] advance a state interest — protecting pain-capable babies from pain — that wasn’t considered by the Supreme Court in Roe or Casey, a federal intermediate appellate court would be justified in concluding that the viability rule does not apply to 20-week laws.  That would create a split with the Ninth Circuit.  And in a 20-week case, the Supreme Court might very well constrain the viability rule in a way allowing for 20-week laws, or even abandon the viability rule altogether.  (Emphasis added)

In other words, a court ruling on the 20-week laws could invalidate viability as a line which states cannot cross.

The legal inaction characterizes the abortion industry’s attempt at self-preservation; they will challenge every Pro-Life law, except where doing so could backfire by giving states more freedom to be Pro-Life (a freedom that, today, is severely curtailed by federal law).  Messner explains that, by not challenging the laws, the abortion industry is simply delaying “the day of reckoning” – that is, the seemingly inevitable point at which the Supreme Court will have to reconcile inconsistencies related to the viability clause created by Roe v. Wade in 1973:  

Viability can occur at 20 weeks of pregnancy measured from the time of fertilization;[6] however, in the current state of medical technology, viability will occur after the 20-week mark in a very large percentage of cases.[7]  Therefore, opponents argue that limiting abortion at 20 weeks to protect pain-capable unborn children violates the viability rule, at least when the restriction applies before viability.[8]

Opposing the protection of preborn children from 20 weeks of development in favor of the “viability” language imposed by the Supreme Court more than four decades ago is indeed a tenuous position for the abortion industry.

Since Roe, medicine and technology have converged to drastically reduce the gestational age at which many babies are considered “viable.”  As Texas Right to Life has reported, while 24 weeks is a widely-accepted and highly reliable age at which viability can be ascribed to the majority of babies, 24 weeks is by no means a survival standard applicable to all babies.  Many have survived and thrived at earlier stages, while medical advances continue to challenge the 24-week standard every single day.

If Big Abortion makes a direct legal challenge of the 20-week laws, they might reveal the arbitrary nature of “viability” as the grounds for the protection of a preborn child.