Feeling Unborn’s Agony

11th State Passes Pain-Capable Legislation

CHARLESTON, W.Va. — West Virginia legislation to shield unborn children from abortion after 20 weeks of pregnancy will become law after overcoming a governor’s veto.

On March 6, the Mountain State became the 11th state in the country to enact the Pain-Capable Unborn Child Protection Act, which prohibits abortion after 20 weeks on the basis that unborn children can feel pain by that point in their development.

“If you can’t kill them when they reach the point of feeling pain, obviously it protects their lives, so we think that impact is a positive development, and the ultimate goal of the pro-life movement is to save the life of the unborn child,” said Mary Spaulding Balch, the director of state legislation for the National Right to Life Committee.

The West Virginia law is based on the National Right to Life’s model bill that is now in effect in eight states: Alabama, Arkansas, Kansas, Louisiana, Nebraska, North Dakota, Oklahoma and Texas.

Similar laws that passed in Georgia and Idaho are currently being challenged in court. West Virginia’s law is set to take effect in mid-June, or 90 days after both chambers of the state Legislature overrode Democratic Gov. Earl Ray Tomblin’s veto.

Citing concerns over the law’s constitutionality, Tomblin vetoed the bill on March 3. Tomblin said he had urged state lawmakers to consider a compromise bill that could pass constitutional muster. He vetoed a similar bill last year, also on constitutional grounds.

But on March 6, the West Virginia Senate voted 27-5 to override the veto, two days after the state House of Delegates did the same, with a 77-16 vote.

The legislation had been supported by local pro-life groups and by Bishop Michael Bransfield of Wheeling-Charleston, who thanked pro-life advocates for their hard-fought campaign after the House of Delegates originally passed the bill on Feb. 11.

“West Virginians can be proud of their legislative representatives for the hard work they put into the effort to protect unborn children from the terrible pain of abortion. They truly represented the pro-life values of the state,” said John Carey, legislative coordinator for West Virginians for Life.


Research Debate

West Virginians for Life’s president, Wanda Franz, said in prepared remarks that the bill, H.B. 2568, “reflects the most current medical research, which clearly demonstrates that human beings feel pain beginning at least by 20 weeks’ gestation.”

Said Franz, “West Virginians will now be protected from pain and abuse from the beginning of the time that they are capable of suffering from pain.”

First enacted by Nebraska in 2010, the Pain-Capable Unborn Child Protection Act — the National Right to Life’s Department of State Legislation drafted the model bill — is based on what National Right to Life says is “substantial medical evidence” that unborn children can feel pain by 20 weeks after fertilization.

The abortion lobby disputes the bill’s premise. Some medical studies suggest that unborn children do not develop the sensory system to feel pain until 30 weeks into gestation. A 2005 survey in The Journal of the American Medical Association argued that fetal perception of pain is “unlikely” before the third trimester.

However, several medical professionals have testified before state legislative committees that unborn children can feel pain at 20 weeks or earlier. Dr. Jean Wright, former professor and chair of pediatrics at Mercer School of Medicine in Macon, Ga., told a congressional subcommittee in 2005 that by 20 weeks “all the essential components of anatomy, physiology and neurobiology exist to transmit painful sensations from the skin to the spinal cord and to the brain” in the unborn.

Balch told the Register that the Pain-Capable Unborn Child Protection Act “brings the unborn baby back into the abortion debate.”

“This legislation allows people to see the ultimate victim of abortion: the pain-capable child,” Balch said. “We think the educational value of getting the unborn child discussed in the abortion debate will ultimately educate people in today’s age who, when we’re talking about abortion, often forget the unborn child.”


National Support

A Quinnipiac University poll in November found that 60% of Americans support banning abortion after 20 weeks. Sensing an opportunity, pro-life advocates and lawmakers in several states are pushing pain-capable legislation.

Ohio state lawmakers introduced a bill on March 11 to ban abortion after 20 weeks. A few days earlier, the New Mexico House of Representatives approved a pain-capable bill and sent it to the state Senate. Meanwhile, Wisconsin Gov. Scott Walker, in a March 3 “Open Letter on Life,” said pain-capable legislation is likely to reach his desk in the current legislative session.

“I will sign that bill when it gets to my desk and support similar legislation on the federal level,” Walker said.

The Republican-controlled U.S. House of Representatives scheduled a vote on a federal version of the Pain-Capable Unborn Child Protect Act for Jan. 22, which would have coincided with the annual March for Life and the anniversary of Roe v. Wade, the U.S. Supreme Court’s 1973 landmark ruling that legalized abortion. However, GOP leaders pulled the bill after several members of their caucus raised concerns that the bill’s exemptions for rape and incest victims did not go far enough.

The House leadership’s decision angered many pro-life activists, including Jill Stanek, who said she would join the Christian Defense Coalition to stage a sit-in protest outside of House Speaker John Boehner’s office on March 25.

Meanwhile, whether the legislation is constitutional remains to be seen. The U.S. Supreme Court’s precedents do not allow states to ban abortions before the point of fetal viability, which is about 24 weeks. Last year, the Supreme Court let stand a lower court decision that declared unconstitutional an Arizona law that banned abortions 18 weeks after fertilization.

The pain-capable laws in Georgia and Idaho are enjoined (prevented from taking effect) pending litigation, said Balch, who has been working on pro-life legislation at the state level for more than 25 years.


Grassroots Activism

Balch said abortion is arguably the most controversial issue on the political agenda, one that most lawmakers would rather ignore.

“We always start out behind the eight ball. It’s never a given that a pro-life bill is going to get a welcome reception, so we start out on a difficult climb,” Balch said, adding that grassroots support is critical.

“If not for the grassroots [activists], pro-life legislation would never get off the ground,” she said. “It’s something the pro-life movement needs in order to have success protecting unborn children.”

Brian Fraga writes from

Fall River, Massachusetts.