By Prof. Teneille Brown, Non-Resident Fellow, Center for Law and the Biosciences, S. J. Quinney School of Law, University of Utah:

The problem with the discourse related to abortion is that we seem to have taken nuanced legal holdings and converted them into binary competitions between the “right to abortion” and the “right to fetal life”.  In its broadest strokes, as first articulated in Roe v. Wade, women never enjoyed an unqualified right to an abortion.  Rather, the Supreme Court narrowly held that up until the moment of gestational viability (legally determined to be the third trimester) the state’s interest in the fetus was not compelling enough to counter a woman’s right to choose for herself whether to terminate her pregnancy.  Subsequent precedent in this area has upheld 24- hour waiting periods and parental and spousal notification requirements, as these conditions were not deemed an “undue burden” on a woman’s decision to terminate her pregnancy.  The case that made these restrictions constitutional was Planned Parenthood v. Casey.

Even though the Court in Casey found the trimester framework in Roe to not be binding authority, it still relied upon it to affirm that, pre-viability, women are able to terminate their pregnancies without undue interference by the state.  Pro-choice advocates were appropriately concerned that Casey chiseled the right envisioned by Roe down to a mere liberty interest.  Casey also rattled the cages of pro-choice advocates by stating that the government has legitimate interests from the “outset” of pregnancy (i.e., after fertilization) to protect the health of the woman and the life of the fetus/potential child.

In 2000, the Supreme Court heard Stenberg v. Carhart, a case which challenged a Nebraska statute that banned abortion by dilation and extraction (D&E, or so called “partial birth abortions”).  In finding this statute unconstitutional, Justice Breyer signaled that a future statute may be upheld if it met two conditions:  a) it provided for an exception to safeguard the life of the mother and b) rested on legislative findings supported by medical evidence that clarified the difference between intact and other types of dilation and extraction abortions.

Taking Breyer’s message from Stenberg seriously,  in 2003 Congress passed the federal “Partial Birth Abortion Act.”  This statute made factual findings that the method of abortion at issue, dilation and extraction, was “a gruesome and inhumane procedure that is never medically necessary and should be prohibited.”  It also clarified that the prohibition was on intact D&E, not on other types.  Finally, the preface stated that this particular type of procedure was never needed to save the woman’s life, as there were other methods available that were at least as effective and less risky. Thus, when the Court decided Gonzales v. Carhart (Carhart II), it held that the D&E method could be banned as Congress had made findings of fact.

Despite the movement toward recognizing greater state interests in the “unborn child,” absolute bans on abortion pre-viability have never been upheld as constitutional.  In each Supreme Court case challenging Roe v. Wade, the Court has upheld the right of the woman to have an abortion pre-viability, while simultaneously acknowledging that the state interests exist pre-viability.  Depending on your perspective, this trend counts as either a frightening slippery slope, or a predictable stare-decisis starecase.  Either way, given this slow erosion of the right articulated in Roe, it is less surprising that states have sought more aggressive restrictions on a woman’s right to an abortion during the first two trimesters.  One such way states have asserted a stronger state interest pre-viability is to rely on scientific data on the ability of fetuses to feel pain. The data they rely upon are mixed at best, raising the question of what types of scientific authority ought to be required before legislatures make findings of fact that are so deferentially reviewed.

In April of last year, Nebraska’s governor signed the “Pain-Capable Unborn Child Protection Act.”  Since then, as recently as last month, four other states (Kansas, Indiana, Oklahoma, and Alabama) have followed Nebraska’s lead – enacting  aggressive copycat legislation aimed at banning almost all abortions after the fifth month of pregnancy (20 weeks).   Following the Carhart factual findings’ safety valve, these statutes contain findings of fact such as: “at least by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.”[1]

Glenn Cohen and Sadath Sayeed carefully reviewed the scientific literature as of 2010 related to this “factual finding.” They ultimately deem it misleading as it relies on inferences about subjective suffering from metabolic changes, hormonal spikes, and motor reflexes to pain stimuli that “can be elicited without nociception or even consciousness.”[2] While imaging maturing brain pathways does provide evidence for what may be the minimum anatomical requirement to feel pain, it does not follow that this data demonstrates that fetuses do or do not feel pain.   To begin, researchers have not achieved anywhere near consensus on how to reliably and accurately infer the experience of pain in legally competent adults.  How then, can they accurately infer this in a fetus?  At this stage, scientists are still discovering how subcortical structures can support pain sensations, and how to infer a subjective feeling of suffering based on a fetus’s withdrawal from a potentially painful stimulus.

The sharp shift away from the trimester framework to the nebulous “pain framework” (here determined to be 20 weeks post-fertilization) is, while not completely arbitrary, not supported by substantial medical data as the sponsors claim.  A good number of researchers maintain that pain cannot be reliably and accurately deduced until immediately before birth (~38th week) and others hold that the brain architecture is there by 24 weeks (though as mentioned above, the feeling of pain does not immediately follow from having the necessary brain structures).  While completely predictable following Carhart II, it is immensely troubling that the factual findings  by these states can be based on such loose interpretations of what counts as “substantial medical authority.”

Of course, this analysis hinges on how we define pain.  If my toes are pinched and my chest cut open while I am in a coma, is this the same qualitative experience as someone doing this to me while I am alert?  Is pain the same when I have no relation with the object or source of the pain?  For a fetus, the entire experience of pain is likely grounded in the presentation of a stimulus that poses a threat to tissue.  As one researcher put it, “the entire experience is completely bounded by the limits of the sensory system and the relationship between the system and the stimulus.”[3] If this very low threshold definition of pain is the type of pain for which the state can assert its interest to the point of restricting a woman’s right to an abortion, then the delicate balance between the state, the fetus, and the woman becomes horribly skewed toward the former.[4] Under this framework, states could justify regulations requiring the woman to sleep on her back at night, so that the fetus does not experience any discomfort.  However, this interpretation misses the point. Where is the adult woman’s concrete and complex feelings of pain in this equation?  If we extend the same broad interpretation of pain to the woman carrying the fetus, then the “pain framework” could be absolutely turned on its head.  States would be hard pressed to explain why they have a greater interest in protecting the fetus, rather than the adult woman, from pain, without referencing other aspects of personhood that are not currently being addressed.  Before we get there though, we need a more refined concept of pain in order to operationalize it in this legal way.  Even if we could reliably and accurately demonstrate that the fetus experiences some threshold of subjective pain, how does this decide the Constitutional matter for us either under Roe, or Carhart?

Without delving into the complicated issue of determining binary consciousness – present or not; we can decide this matter based purely on the non-controversial assertion that the fetus is not the only entity in this equation in which the state has an interest.  The woman carrying the baby can also experience pain.  She can experience pain of contractions.  She can feel emotional anguish over the diagnosis of a birth defect in the 24th week, a diagnosis that would lead the fetus to experience much pain if it were to be born.  There is often heartbreak and suffering, and a strong connection with the fetus she is carrying.

While Nebraska, Indiana, Oklahoma, Kansas and Alabama obviously had a pro-life agenda in their sights, the incredibly vague and unsupported findings of fact related to fetal pain may ultimately backfire.  Because the Supreme Court has never framed the right in terms of a binary “right to abortion” or “right to life” the balancing act between the women, fetuses, and states will necessarily have to include a discussion of the pain and suffering of the woman carrying the child.  Failure to perform this balancing between the entities would signal a radical and delegitimizing watershed moment in Fourteenth Amendment substantive due process jurisprudence.  Saying the fetus can experience pain does not convert a balancing test into a black and white issue, where the state now has a compelling state interest to do whatever it wants.

Finally, while abortion and fetal pain may be discussed without reference to personhood, this philosophical, moral, and legally loaded term obviously lies just beneath the surface. To be sure, in the philosophical or moral context, we may just be using labels for various traits we already associate with being  a person, to justify inclusion or exclusion.  Put another way, including the perception of pain as a relevant criteria for personhood is philosophically questionable, as it starts from the presumption that part of what makes us persons is that we feel pain.

Legal definitions of personhood, while informed by philosophy and morals, are not bound by the same strictures.  We can draw on theories of what counts as a conscious person, but under Constitutional analysis, we must answer a separate question: is this a legal person, endowed with relevant legal (as opposed to philosophical or metaphysical) capacities?  The legal rights attached to various persons should necessarily change based upon the context, regardless of their moral or philosophical status as persons.   To borrow from Peter Singer, “potential prime ministers obviously do not have the rights of actual prime ministers, so that ‘potential persons’ …can hardly be considered in the same moral category as actual persons, or ‘us’”.[5]

Rather than being a binary construct that applies in all legal settings, legal personhood ought to depend on the legal context and the nature of the right that is at stake.  Rather than putting forward an exhaustive list of criteria, (with “ability to feel pain” being a necessary and sufficient condition for all aspects of legal personhood), perhaps we should borrow from the bundle of sticks metaphor from property law analysis. Depending on the legal right that is at stake, you may have “enough” of the sticks in the bundle to be a legal person for this particular context.  But we should be very careful not to put forward one stick in the bundle (i.e., ability to feel pain) and use it to argue that this entity is a legal person endowed with greater rights, with associated greater state protection, than the rest of us. The logical extensions of such an approach are far too sweeping to contemplate.

Teneille Brown, Non-Resident Fellow

Associate Professor of Law, S. J. Quinney School of Law, University of Utah

Adjunct Professor, Department of Internal Medicine, University of Utah Medical School

[1] Nebraska Revised Statutes 28-3, 104 (2010)

[2]I. Glenn Cohen & Sadath Sayeed, Fetal Pain, Abortion, Viability, and the Constitution, 39 The Journal of Law, Medicine & Ethics, 235 (2011)

[3] Stuart Derbyshire, Foetal Pain?  Best Practice & Research Clinical Obstetrics and Gynaecology 1, 7 (2010)

[4] The laws have other serious Constitutional problems.  Namely, they allow the judge to decide sua sponte whether to protect the confidentiality of the woman, and they only provide an incredibly narrow exception for the woman’s life.  Specifically, rather than focus on the health interests of the woman, the abortion can only be performed before the 20th week would “avert her death or for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function”.

[5] Chappell, On the Very Idea of Criteria for Personhood, 49 The Southern J. of Philo.1, 4-5 (2011)